Supreme Court sets trial date to consider Gallup DA's removal

SANTA FE — After two months of legal jousting, the court case that will determine whether a northwest New Mexico district attorney should be removed from office is set to start moving forward.

The state Supreme Court recently scheduled a three-day trial starting Dec. 1 to determine whether McKinley County District Attorney Bernadine Martin should be removed from the office she was reelected to last year.

New Mexico Attorney General Raúl Torrez in August filed a petition in the Supreme Court seeking to remove Martin from her office for failing to adequately do her job.

Specifically, the petition alleges Martin has violated state procurement laws, created a hostile work environment and relied on contract attorneys after running off all staff attorneys in her office.

Martin, who is the state’s first female Navajo district attorney, has defended her job performance and criticized legislators for essentially defunding her office during this year’s 60-day legislative session.

“We are not missing deadlines,” she insisted during an August news conference in Gallup that drew pointed questions and criticism from community members.

Martin said in recent court filings she is currently handling about 600 criminal cases alone in McKinley County since the Legislature defunded her office, and described the legal review of her job performance as improper and politically motivated.

“It is the duty of the district attorney, not the court, to engage in prosecutorial discretion with respect to charging individuals for the commission of crimes,” an attorney representing Martin wrote this month in a court-ordered response.

But her motion to limit consideration of the allegations against her to her current term in office — which began in January — was rejected last week by the Supreme Court.

In addition, the attorney general has directed prosecutors in his office to take over two criminal cases — a rape case and a murder case — that had been previously dropped by the McKinley County District Attorney’s office.

Under state law, district attorneys can only be removed from office in certain circumstances, including conviction of a felony offense, failure to discharge the duties of the office and gross incompetency or negligence. The Department of Justice petition claims Martin meets two of those criteria — the ones dealing with the duties of her office and gross incompetency or negligence.

While removing an elected official from office is uncommon in New Mexico, it’s not unprecedented. Most recently, former Otero County Commissioner Couy Griffin was ousted in 2022 for violating the U.S. Constitution’s anti-insurrection clause.

However, the system for determining whether an elected district attorney should be removed from office is largely untested in recent state history.

Under state law, petitions seeking removal of a district attorney are tried in the Supreme Court, not by a jury. Whatever decision the state’s highest court makes in such a case is final.

While the full Supreme Court will preside over the trial, the court has appointed Alan Malott, a retired state judge, as special master in the case to oversee initial proceedings and scheduling issues.