AG Opinion on Appointed NM Probate Judges

Earlier this month Attorney General King issued a formal Opinion on appointment questions involving probate judges; questions that have persisted for almost 90 years in New Mexico. The following is text from an AGO news release regarding the Opinion:

Probate Judges Must Run in Next Election After Appointment

AG Opinion Suggests That Legislature Could Clear Up Appointment Issues

(SANTA FE)---Attorney General Gary King says any individual appointed to replace a probate judge who was in the first year of a four-year term does not finish the original office-holder’s term and must run in the first general election following appointment if the appointee wishes to continue to hold the position.

The AG Opinion is in response to a request from NM State Senator John Sapien, of Corrales, who asked, “Does a person appointed to replace a county probate judge who passed away during the first year of her four-year term finish the original office-holder’s term in office?”

Senator Sapien also asked, “If the appointee must run for the office prior to the expiration of the original office-holder’s term in office, must he run in the primary and general election?” The response: The appointed probate judge is subject to all of the normal legal requirements of any candidate running for that office and therefore must comply with the applicable provisions of the Election Code.

Additionally, the Senator asked, “If the appointee must run for the office in the next election cycle and wins, must he run again two years later when the original office-holder’s term would have expired?” The response: If the appointed probate judge is elected in the next election cycle, the appointee must run again two years later when the original term expires.

In closing, the AG Opinion states: The core issues raised here are, admittedly, difficult ones that require thoughtful contemplation. We note, again, that the basic advice of the Attorney General has not changed regarding these issues since 1924 and that the legislature has not changed the applicable law during that time. Perhaps the best course to eliminate future debate is for the legislature to address the issues and amend relevant statutes in order to clearly reflect legislative intent.