Two New Mexico Court of Appeals judges to retire

Judge Michael Bustamante, seated second to right, and Judge Roderick Kennedy, seated at far right, will retire this year. Courtesy photo/New Mexico Court of Appeals

Two of the 10 judges on the New Mexico Court of Appeals will retire later this year, giving Gov. Susana Martinez an opportunity to appoint a pair of jurists to serve on one of the state’s highest judicial bodies through at least 2018.

Judge Michael Bustamante, appointed by Gov. Bruce King in 1994, will retire Oct. 31. Judge Roderick Kennedy, first appointed by Gov. Gary Johnson in 1999 and again in 2002, will retire Nov. 30.

Though the governor does not have total control over the selection process, the turnover gives the Republican a chance to leave a big if fleeting influence on a court mostly filled with appointees of Democratic predecessors. Five of the court’s 10 judges were appointed by Democrats. Another judge won election as a Democrat in 2012, beating out one of the governor’s appointees. Martinez selected two of the sitting judges, one of whom is running to keep his seat.

By stepping down at the end of an election season, the judges are giving their successors about a year on the bench before filing deadlines for the next partisan primary election.

Under New Mexico’s unique hybrid system for filling judicial vacancies, the appointees will have to run in a statewide partisan statewide election during 2018 to keep their seats.

But appointees only complete their predecessor’s term. Kennedy’s term is scheduled to end in 2020. If his successor wishes to keep the seat, that person will have to run in 2018 and stand again in a “retention” election during 2020. The judge would not have an opponent that year but voters would be asked whether the judge should remain on the bench. Only if the new judge is victorious in both elections will he or she be able to serve a full eight-year term.

Bustamante’s term ends in 2018, leaving his successor to campaign in only one election season to win a full term.

The political calendar could shape the pool of applicants to replace Kennedy and Bustamante.

Only three attorneys applied to fill a spot on the Court of Appeals vacated by Cynthia Fry after she announced her retirement in December. The governor appointed Stephen French to the court, leaving him facing an election less than one year away.

Bustamante said Monday he hopes the timing of his retirement will draw a larger pool of applicants.

“The last few rounds were small groups,” he said, referring to recent nomination processes. “Lawyers don’t want to give up a practice unless they feel they’ll be on the court for awhile.”

Asked why he is stepping down, the veteran judge said: “It’s just time.”

Bustamante said he has been planning his departure for about a year and cited personal obligations as prompting the decision. The judge is a grandfather and his parents are in their late 80s and early 90s.

Kennedy cited the state’s pension plan in explaining his decision to retire. If he stays on the bench after 2016, the judge said he will have to pay a greater share of his salary into the plan without accruing any additional benefits.

But Kennedy said he is not quitting law.

“This is what I’ve always wanted to do,” he said.

A lawyer for 35 years and vice-chair of the American Bar Association’s Scientific Evidence Committee, the judge said he is interested in teaching and will continue to work on issues involving forensic science.

Johnson, currently the Libertarian nominee for president, was a Republican governor of New Mexico when he appointed Kennedy.

A nominating commission chaired by the dean of The University of New Mexico School of Law will meet in Santa Fe on Dec. 1 to interview applicants for Bustamante’s seat.

A second commission will convene later that month to interview applicants for Kennedy’s position.

Applicants must be at least 35 years old, a practicing lawyer for the last 10 years and a resident of New Mexico for at least the last three years.

The governor will have 30 days after receiving recommendations from each commission to appoint one of the nominated applicants or ask for additional candidates.

Three of the court’s judges are based at the Supreme Court Building in Santa Fe but Bustamante and Kennedy work at the Court of Appeals’ office in Albuquerque.

With a staff of about 50 full-time employees, the court handles about 900 cases each year. Its caseload includes all criminal and civil appeals, except in cases involving sentences of life in prison or death.

Court of Appeals judges earn about $126,612 annually.

Contact Andrew Oxford at 986-3093 or Follow him @andrewboxford.

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