That’s because Mitchell has applied to fill the vacancy that will be created Jan. 1 by his election loss.
It’s an odd – and apparently new – twist to New Mexico’s 26-year-old system of appointing, electing and retaining judges. There is no law that explicitly says judges can’t be appointed to vacancies created by their losses in retention elections.
Mitchell and Donald C. Schutte of Tucumcari, who served in the judgeship before Mitchell and lost an election for the job to Mitchell in 2008, are the only two applicants for the vacancy created by Mitchell’s retention loss.
A bipartisan judicial nominating commission made up of judges, other lawyers and non-lawyers will decide whether to recommend Mitchell, Schutte, both or neither to the governor for possible appointment to the vacancy.
Gov. Susana Martinez is a Republican, and Mitchell ran as a Republican in defeating Schutte, a Democrat, in the 2008 election for the only District Court judgeship for the counties of Quay, Harding and De Baca, which make up the 10th Judicial District.
Asked whether the governor would consider appointing Mitchell if he is recommended by the nominating commission, Martinez spokesman Enrique Knell said, “The governor considers all qualified applicants sent to her from the nominating commissions.”
The state Supreme Court last week rejected a request that it prohibit the nominating commission from considering Mitchell’s application. A newly formed political committee that campaigned against Mitchell’s retention sought the order.
“Does anyone care what the voters of the 10th Judicial District say?” asked the committee’s lawyer, Warren F. Frost of Logan, at a hearing before three of the justices.
The Supreme Court left open the possibility that if the nominating commission recommends Mitchell and he is appointed by the governor, the justices may then decide the issue of whether judges can fill vacancies created by their losses in retention elections.
The nominating commission is scheduled to meet Thursday in Tucumcari to consider the applications of Mitchell and Schutte and make a recommendation to the governor.
Whoever ends up being appointed will have to win a partisan election in 2016 to retain the job. That means an election rematch between Mitchell and Schutte is possible.
After being appointed and winning a partisan election, a judge faces only retention elections to keep the position. A retention election is a “yes” or “no” vote on keeping a judge.
Democratic Gov. Bill Richardson appointed Schutte in 2007 to fill a vacancy in the judgeship due to retirement, but Schutte lost his bid for partisan election to Mitchell the next year.
In this year’s November election, 52 percent of voters cast “yes” ballots for Mitchell’s retention, but 57 percent is needed under the state Constitution for a judge to keep the position.
The Committee for Law and Order – funded largely by Frost – campaigned against Mitchell’s retention. Schutte was also a donor to the committee.
In newspaper ads and mailings to voters, the committee said Mitchell had been too lenient on criminals and had taken too long to make some key decisions, according to the Quay County Sun newspaper.
The newspaper identified the chairman of the committee as Scott Simpson, father of Amber Simpson, who was beaten nearly to death in 2009 by her sometime-boyfriend Moses Earl Ingram.
The beating took place two days after Mitchell granted a request by Ingram to be released from jail for two weeks so he could spend time with his two children in Tucumcari before they had to return to Texas for the start of school.
Ingram had previously been convicted of domestic violence and had been jailed pending trial on assault and other charges in three other domestic violence cases, including at least one involving Amber Simpson.
Mitchell has said he regrets his decision to release Ingram.
Allowing Mitchell to seek and be appointed to the vacancy created by his election loss would render the vote against his retention meaningless, Frost told the Supreme Court.
“Why did we have this election if he (Mitchell) can avoid the result?” the lawyer asked.
But Justice Petra Jimenez Maes noted that the state Constitution doesn’t prohibit a judge who has lost a retention election from seeking appointment to the vacancy created by the loss.
“You’re asking us to read in language there,” Maes told Frost.
The justices said, however, said the judicial nominating commission and the governor could take into consideration Mitchell’s lost retention election, as well as Schutte’s loss to Mitchell in the 2008 election.
Henry Bohnhoff, an attorney for Mitchell, told the Supreme Court that Mitchell knows his lost retention election “will be the elephant in the room” when he is interviewed by the nominating commission.
In a unanimous decision, the justices ruled the issue of whether Mitchell can be appointed to the vacancy wasn’t ripe for a decision because the nominating commission hadn’t yet made its recommendation and the governor hadn’t yet made an appointment.
After the hearing, Mitchell said he didn’t view his loss in the retention election as a referendum on how well he has performed his job.
He said the Committee for Law and Order started its campaign with just weeks to go before the election and that he had inadequate time to respond to the attacks.
“The voters had one side presented,” Mitchell said.
He also said voters didn’t reject him; they merely said they want a partisan election in two years to decide the judgeship. The governor’s appointee will serve until that time and be eligible to run.
UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at firstname.lastname@example.org or 505-992-6280 in Santa Fe. Go to www.abqjournal.com/letters/new to submit a letter to the editor.