Liberal behind the label?: a comparative high court case study of the New Mexico Supreme Court from 1997-2002.

• Author: Eck, Ilana A.
• Position: High Court Studies

1. INTRODUCTION

   How does one begin to uncover the individual judicial ideologies often masked in the opinions and decisions of a court? Identifying the underlying political and philosophical positions of the members of a state high court is essential to understanding that state's fundamental law and public policies. The means of obtaining insight into a court's "inner sanctum" is often only possible through a divided opinion, where the dissenter's strongly held personal views are individually expressed. (2)

   Since divided opinions are revealing as to an individual's own perspectives, the focus of this high court study is centered on using these opinions to expose the sentiments of each Justice on the New Mexico Supreme Court. In turn, this will attempt to define the contemporary character of New Mexico's highest tribunal. In particular, this high court study addresses all of the divided constitutional decisions on New Mexico state constitutional issues set forth by the Supreme Court from 1997-2002. (3) As used here, constitutional issues are broadly viewed as including all those questions of criminal justice, civil rights, liberty interests, and public law. (4) This high court study does not focus on the legal result of the cases discussed. Rather, the focus is on the issue that divided the court. (5) In each case, the justices have been categorized as being either pro-prosecution or pro-defendant in criminal cases and either pro-individual or pro-governmental/corporate interests in civil cases. In the context of criminal cases, the justices have either protected individual liberty interests or compromised such interests in favor of achieving a just and orderly society. (6) Similarly, in civil cases, the justices have either advanced individual liberty interests or suppressed those interests in order to maintain the power of the government or large private interests. It is clear that the concurrence or dissent that favors the prosecution or defense--in the criminal context--is necessarily siding with either the government or the individual respectively. But, in civil matters, favoring the plaintiff does not necessarily mean justice in favor of the party seeking to promote individual interests. For example, the plaintiff in a civil case could be a large corporation or political agency seeking damages from an individual party. Therefore, it is important to note that the pro-individual category defined in this high court study means that justice favoring an individual interest has allotted more rights or liberties upon a private person's autonomy, while justice with a pro-government stance is concerned more with society as a whole and is willing to derogate individual freedoms to further society's interests.

2. THE COURT

   The New Mexico Supreme Court is comprised of five justices elected for eight-year terms. (7) The Court is currently occupied exclusively by justices who are wholly affiliated with the Democratic Party. Such unanimity would implicate overall consonance on pivotal issues, yet the positions of these Justices have at times been multifarious. (8) Interestingly though, as would be anticipated, the Justices have delivered unanimous decisions on liberal issues that have invoked disagreement when resolved in other, more diverse jurisdictions. (9)

   The New Mexico Supreme Court decided fifty-one appeals in which the justices were divided on an issue of public law between 1997-2002. Of these decisions, thirty-four of them were criminal matters, and eighteen were based on civil causes of action. (10)

   1. Criminal Cases

      Of the thirty-four divided criminal cases during the five-year period between 1997-2002, the New Mexico Supreme Court decided in favor of the prosecution in 59% of the cases and held in favor of the individual defendant in 41% of the cases. (11) Strong voting patterns are apparent when looking at the statistical data derived from these decisions.

      Chief Justice Serna and Justice Baca have been voting partners for the past five years, as they have voted together 78% of the time in the criminal cases. (12) Both Serna and Baca have overwhelmingly decided in favor of the prosecution despite defenses asserting individual rights violations. Though neither of these justices have a perfectly consistent voting record for the prosecution, Chief Justice Serna sided with the prosecution in 82% of the divided criminal cases. (13) Justice Baca's opinions were even more invariable, as he was pro-prosecution in thirty-two out of the thirty-four--or 97%--of the criminal cases. (14) Thus, compared to the other justices on the Court, Justices Serna and Baca constitute the pro-prosecution end of the Court's spectrum in criminal cases.

      While Justice Baca was pro-prosecution 97% of the time, Justice Franchini only voted in favor of the prosecution in 18% of the cases during this five-year span. (15) Justice Franchini was the most protective of the rights of the accused, as he voted to overturn convictions in 82% of the cases. (16)

      Although Justice Franchini was the Court's most rights-protective justice, Justice Minzner follows his lead at a close second. Justice Minzner agrees most often with Justice Franchini, with whom she has voted with 62% of the time. (17) Justice Minzner sought to protect individual liberty interests in 68% of cases, and Justice Minzner only voted in favor of the prosecution 32% of the time. (18)

      Because Chief Justice Serna and Justice Baca are pro-prosecution justices, while Justices Franchini and Minzner are the rights-protective justices, the public law issues in the criminal context of this court have most often been resolved by Justice Maes. Justice Maes is the court's moderate, but in criminal cases, she is slightly more pro-prosecution. Justice Maes favored the prosecution in 67% of criminal cases in which she participated. (19)

      In the context of criminal cases, the two poles of the Court are comprised by Justice Baca at the pro-prosecution end, and Justice Franchini as the defender of individual liberties at the opposite end. (20) Although Justice Maes often proves to be the deciding vote, she aligns herself most often with Justice Serna, and votes least often with Justice Franchini. (21)

   2. Civil Cases

      Of the eighteen divided civil cases during the five-year period between 1997-2002, the New Mexico Supreme Court was split equally, deciding in favor of the government in 50% of the cases, and holding in favor of the individuals in the other 50% of the cases. (22) The court's voting allegiances in civil cases are somewhat different than their allegiances in the aforementioned criminal cases. While Justice Baca only decided in favor of the defendant 3% of the time in criminal cases, he sided with the individual 28% of the time in the civil context. (23) Justice Serna also increased his protection of individual interests in the context of civil cases to 39%--compared with 18% in criminal cases. (24) Justice Minzner remained true to her pro-individual stance in civil cases, but she lost her voting companion from the criminal decisions. Justice Franchini, voted in favor of the defendant in criminal cases 82% of the time, while he only favored the individual interest in civil cases 33% of the time. (25) Justice Maes--the moderate of the court--also made a complete switch between her criminal and civil allegiances. In the criminal cases, Justice Maes only favored the defendant 33% of the time, while she favored the individual interest 69% of the time in civil cases. (26)

3. THE JUSTICES

   1. Chief Justice Patricio M. Serna

      Chief Justice Serna was elected to the New Mexico Supreme Court in 1996 and became Chief Justice in 2001. Though a self proclaimed democrat, Chief Justice Serna is the second most proprosecution member of the court. In 82% of the divided criminal opinions between 1997-2002, Justice Serna either upheld convictions or vehemently dissented when the defense prevailed. (27) For example, in both State v. Antillon (28) and State v. Nunez, (29) the court recognized a double jeopardy violation when the state sought to prosecute criminal charges after the defendant forfeited property in connection with drug charges, because the defendant's property deprivation was seen as a second punishment. (30) Justice Serna robustly contested this issue in his dissents, in which he claimed that the defendants should not be able to assert a Fifth Amendment violation when they are deprived of property and are later convicted for such conduct. (31)

      Although Chief Justice Serna is generally pro-law enforcement in the context of criminal cases, there have been occasions when he has reversed convictions or remanded the case for further determination of the facts instead of simply following his usual pattern of voting in favor of the prosecution. (32) However, in all of these instances, Chief Justice Serna's pro-defense stance is not the most protective view maintained in these decisions. For example, in State v. Padilla, (33) Chief Justice Serna participated in the majority opinion, which held that a defendant can waive the right to be present at jury selection, but that it must be done voluntarily, knowingly, and intelligently. (34) Here, the majority decided that the defendant did not waive this right because he was not aware of the consequences of his actions. (35) Chief Justice Serna's decision to participate in the majority opinion did not place him at either extreme of the pro-prosecution/pro-defense paradigm, as Justice Minzner's concurrence provided more protection for the defendant--claiming that the right to be present at jury selection could not be waived. (36) Yet Serna did not fall into the other extreme either because Justice Baca's dissent asserts that the defendant is not only able to waive the right to be present at voir dire, but that the defendant here actually waived this right knowingly and intelligently by not appearing at the time the selection was scheduled to take place...