Should sitting judges preside over inter-branch paid leave dispute? State agency says no

SANTA FE — A New Mexico state agency facing a lawsuit from the state’s judiciary over its handling of a court-approved paid leave policy says it’s improper for sitting judges to preside over the case.

In a court filing this week, attorneys for state Department of Finance and Administration Secretary Wayne Propst said only retired judges should hear the case in order to avoid a violation of the state’s due process rights.

A DFA spokesman also said the Supreme Court was in an “impossible situation” of having to rule on the legality of a policy it adopted.

“We are respectfully requesting a decision on the case be made by a fair and impartial tribunal,” said DFA spokesman Henry Valdez. “This is a reasonable request, which we believe is a basic requirement of constitutional due process.”

As of Thursday, three of the state’s five Supreme Court justices — Shannon Bacon, Brianna Zamora and David Thomson, the chief justice — had recused themselves from the case.

However, the other two justices — Julie Vargas and Michael Vigil — had not recused themselves, and one of the three people appointed to replace a recused justice was Court of Appeals Judge Kristina Bogardus.

The other two individuals are retired Supreme Court justices Richard Bosson and Edward Chávez.

Administrative Office of the Courts Director Karl Reifsteck pointed out the judicial branch’s paid time off policy does not apply to judges.

“There’s no financial benefit to our judges and justices,” he told the Journal.

He also said it’s not uncommon for the state’s highest court to have to review the legality of its own actions — or the actions of other judicial officers.

But while the judiciary’s paid time off policy does not apply to judges, the case’s outcome could have a financial impact on judge’s current and future employees, DFA contract attorneys argued in their response this week.

For that reason, they said it would be unethical — and possibly a violation of the New Mexico Judicial Code of Conduct — for any nonretired judges to preside over the case.

“As sitting justices, it is not unreasonable to believe that they have an interest in the outcome of this case or that it is inevitable that they will rule in the court’s favor,” attorneys Luis Carrasco and Edward Ricco wrote in their response.

Under the state’s Judicial Code of Conduct, judges are required to be objective and open-minded when hearing cases.

They are also directed to recuse themselves from a case when their impartiality might “reasonably be questioned.” That includes instances when a judge’s family member is involved with a case or when a judge has a financial interest in the matter before the court.

The Administrative Office of the Courts filed a lawsuit last month accusing Propst, the top budget official in Gov. Michelle Lujan Grisham’s administration, of overstepping his authority by blocking paid time off payments for judicial employees.

The judiciary branch specifically argued the DFA secretary is violating the state Constitution’s separation of powers by interfering in the court system’s ability to make its own budgetary decisions. Its paid time off policy was adopted in May 2023 and applies to roughly 2,000 employees, who can use accrued time off for vacation, medical care or other approved purposes.

However, the Department of Finance and Administration stopped fully processing the payouts in June after a legal opinion from Attorney General Raúl Torrez’s office concluded the policy likely violates state law.

Specifically, the paid time off policy conflicts with restrictions imposed by the Legislature on payouts to state employees for unused sick leave, the nonbinding legal opinion said.

The Department of Finance and Administration has also said the judicial branch’s leave program pays employees about 180% more than standard state payouts, though judicial officials have argued it actually saves money in the long run.

Meanwhile, legal disputes between the judicial and executive branches might be rare, but they are not unprecedented.

In 2014, the Supreme Court ruled state judges were entitled to 5% salary increases after finding then-Gov. Susana Martinez’s veto of raises approved by the Legislature was incomplete.

In that case, four retired judges were appointed to hear the case along with one Supreme Court justice, after the court’s four other justices recused themselves.