By Wren Abbott
SUN Staff Writer
Governor Bill Richardson has requested a nominating commission submit more names to his office after it only recommended a single applicant to fill the state District Court judge vacancy in Tierra Amarilla.
After the Judicial Selection Nominating Commission announced Jan. 15 it recommended Española attorney Sheri Raphaelson, just one of the six applicants for appointment by the governor, Governor’s office spokeswoman Caitlin Kelleher said the governor requested more names from which to choose.
The chosen applicant will fill the vacancy left by former First Judicial District Court judge Timothy Garcia. That position draws an annual salary of $111,631 and will stand for election in 2010, then be up for retention every two years thereafter. Garcia was appointed by the governor to fill the vacancy left by the retirement of Judge A. Joseph Alarid on the state Court of Appeals.
Raphaelson, 44, handles criminal cases up to the felony level and civil cases in her practice, and previously was appointed to be special master to the Juvenile Drug Court in the First Judicial District. The new District Court judge handles mostly felony criminal cases and civil cases.
Richardson is authorized by the state Constitution to choose to request additional names regardless of the number handed down by the Commission. At the governor’s request, the Commission must “actively solicit” further applications and hold a second meeting to interview the applicants, according to the Constitution.
In 2007, the Judicial Selection Nominating Commission for the Fifth Judicial District in Carlsbad recommended only one name out of five applicants to the governor to fill a state District Court vacancy. After the governor requested more names, the Commission met again “for less than 45 minutes” and re-evaluated the same previously rejected four applicants, again not reaching majority approval of any of them, according to court documents. In the precedent-setting opinion issued in May 2007, Supreme Court Justice Patricio Serna found that the Constitution “evinces a clear intent that the governor … will have before him more than one name,” and pointed out that it was the Commission’s duty not to re-evaluate the original applicants but to solicit additional ones.
Kelleher said the governor was expecting to receive the new names later this week. He has 30 days from the time he receives the final list to make the appointment.
Raphaelson was in her Española office Jan. 15 when she received the news about her nomination.
“My excitement was tempered with the anxiety that being the only candidate was probably going to create problems for the governor,” Raphaelson said. “It’s definitely going to make the process take longer than it would have.”
Santa Fe attorney Mark Baker, one of 19 Commission members, said last week that he was prepared to solicit more applicants if the governor asked for them.
“I’m very aware of the Governor’s right to make appointments,” Baker said, “And if he decided to ask for additional names so that he has a choice from a group I’ll get to work looking for qualified applicants to try to send up to him.”
State District Court Judge Stephen Pfeffer, another member of the Commission — which comprises judges, lawyers, and citizens without any legal affiliation — also expressed awareness of the Commission’s goal to recommend more than one name.
“I certainly wished there was more than one candidate who was determined to be qualified coming out of that commission,” Pfeffer said.
The candidates are evaluated based on several criteria including professional skills, judicial temperament, speaking ability, impartiality and community involvement, according to the Commission’s rules.
“We went through all the other candidates in great detail and found that she was the only one by a majority vote that was qualified for the job,” Santa Fe attorney and Commission member Scott Hatcher explained.
A.J. Salazar, a former chief deputy district attorney in the Rio Arriba office of the First Judicial District and one of the five rejected applicants, second-guessed the decision of the Commission to choose only one name.
“I think the governor will probably have an issue with it given the governor’s history,” Salazar said. “It’s something that’s going to have to be played out through the process. Typically the governor likes to have a choice not just one name. Not that (Raphaelson’s) not competent or anything.”
Each of the Commission members who agreed to comment for this story affirmed they felt very confident in the choice of Raphaelson.
“I just felt like Ms. Raphaelson stood out within the group.” Baker said. “It was a combination of the fact that she’s done both a good deal of civil and criminal work and really the way she presented herself during the interview — very poised and knowledgeable.”
Among Raphaelson’s high-profile criminal cases was her October 2007 defense of Anthony Romero, a 36-year-old La Pueblo man accused of beating his wife to death in 2001. Raphaelson secured an acquittal for her client on the charge of second-degree murder despite the challenges posed by the cases grim facts— Romero did not immediately report Jessica Romero de Herrera’s death and claimed he attacked her in self-defense after she squeezed his testicles.
Hatcher said Raphaelson’s limited experience with civil cases was the only shortcoming the Commission was concerned about.
“We were impressed with her overall ability,” Hatcher said. “We just felt that any shortcomings would be overcome — bottom line is we felt she’d be a quick learner.”
Among Raphaelson’s more prominent civil cases was her representation of an Española Elementary third-grader’s family. The family was awarded a $221,000 settlement in 2006 from the city of Española after its police department arrested the child in a case that drew national media attention.
The other rejected applicants who agreed to comment for this story had positive things to say about Raphaelson.
“She’s bright and energetic, I think she’ll do a good job,” Santa Fe personal injury lawyer and applicant Paul Mannick said. “I’m not going to second-guess (the Commission’s) decision.”
Elizabeth “Betsy” Musselman, a Taos family law practitioner who was also rejected by the Commission, praised Raphaelson’s “broad legal background” and called her “perfectly competent,” though Musselman said she was disappointed not to have been nominated herself.
The other two rejected applicants, Santa Fe lawyer and former domestic relations hearing officer Linda Martinez-Palmer and Santa Fe corporate lawyer and entrepreneur Nathaniel Thompkins, did not return calls for comment.
Raphaelson, in addition to being a private attorney based in Española for the past 17 years, has had a second career as a licensed midwife during the same period of time. She is anxious to find out whether she will be appointed judge, and if so, when, so she can make arrangements to close her private practice and also make changes to her midwifery practice.
Raphaelson just returned from a two-week “vacation” in Uganda, where she performed deliveries and did prenatal care as a volunteer at two maternity hospitals, she said Monday.
Raphaelson is considering ending her local practice as a midwife and practicing midwifery only in these multiple-week stints each year, even if she isn’t appointed to be the next judge, she said.
“Even if it doesn’t end up happening, I feel really honored to have been chosen,” Raphaelson said. “That such a large, diverse group of people on the Commission thought that I could do a good job, that alone makes me feel really proud and successful.”
Correction: An earlier version of this story need to be corrected. A quotation attributed to former chief deputy district attorney A.J. Salazar was taken out of context. The story had stated that Salazar second guessed the Judicial Selection Commission’s selection of only one name to fill the state District Court vacancy and second-guessed the selection of Sheri Raphaelson as the nominee. This is what he actually said.
“I think the governor will probably have an issue with it given the governor’s history. It’s something that’s going to have to be played out through the process. Typically the governor likes to have a choice not just one name. Not that (Raphaelson’s) not competent or anything.”
Then asked whether Raphaelson was sufficiently experienced and whether Salazar (as prosecutor) had opposed her on many cases, Salazar said:
“Not recently, the last case I had with her was maybe six or seven years ago. Recently she hasn’t done much criminal work, at least at the felony level.”
This second quotation had been referred to later in the story by stating that Salazar was the only rejected applicant who did not have only positive things to say about Raphaelson. In fact, Salazar claims he had only positive things to say about her and that the quote about her recent experience was only made in reference to the part of the question about whether they had faced each other in court and not about her having sufficient experience.