New Mexico’s constitution is unambiguous: “The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others.”
That provision is the basis for a motion Alec Baldwin’s lawyers filed more than a month ago, asking Judge Mary L. Marlowe Sommer to disqualify the special prosecutor seeking to convict the actor for involuntary manslaughter in the death of cinematographer Halyna Hutchins.
Last week, Mary Carmack-Altwies, the First Judicial District Court‘s district attorney, responded to the Baldwin legal team’s motion. And her rebuttal is weak — very, very weak.
First, the basics. Andrea Reeb is a former district attorney for the Ninth Judicial District Court, which covers Curry County and Roosevelt County. Last August, a few months after her retirement, she was chosen by Carmack-Altwies to serve as special prosecutor in the Baldwin case.
However, in November, Reeb was elected to the State House of Representatives. Clearly, that’s a conflict with the Land of Enchantment’s constitution, as quoted above. And Baldwin’s lawyers were quick to pounce on the incongruity. New Mexico is about as welcoming to the limited-government philosophy as a chicken coop is to coyotes, but the state’s own Supreme Court, in a 1998 ruling, wrote that “the accumulation of too much power” in one branch poses “a threat to liberty.” (The separation-of-powers principle, justices held, is “one of the cornerstones of democratic government.”)
But here’s the catch, as explained by the Baldwin motion:
Neither the New Mexico Constitution nor caselaw is clear whether a District Attorney exercises the power of the executive department or the judicial department. On the one hand, the office of the District Attorney is established in Article VI of the Constitution, which governs the judicial department. … On the other hand, the power “to initiate criminal investigations and prosecutions” has long been considered a “core executive power[,]” … and New Mexico precedent suggests that “prosecution” is a principal function of the “executive branch.”
Problematic, to an extent, but Reeb’s role as special prosecutor — her estimated compensation for the case is currently budgeted at a hefty $156,000 — unquestionably makes her someone exercising state power as an official of either the executive or judicial branch. And she “is not constitutionally permitted to serve simultaneously as a legislator and a special prosecutor. Doing so vests two core powers of different branches — legislating and prosecuting — in the same person and is thus barred by the plain language of Article III of the New Mexico Constitution.”
Predictably, Carmack-Altwies disagrees. Her response is short and unpersuasive. She concedes that district attorneys and special prosecutors “do not fit squarely within either the executive or judicial departments of government,” but considers the ambiguity to be a feature, not a bug. The framers of the state’s constitution could have clarified the matter, but chose not to. The only officials listed as belonging to the “executive department” are the “governor, lieutenant governor, secretary of state, state auditor, state treasurer, attorney general and commissioner of public lands.” And the “statutory construction maxim ‘expression unius est exclusion alterius’ teaches that the express listing of one or more things excludes all others.”
Using the “logic” offered by Carmack-Altwies, the entire executive branch of New Mexico’s state government consists of seven people. Game wardens? Taxation and Revenue Department auditors? Medicaid bureaucrats? Since they’re not specifically referenced in the state constitution, they must not be employees of New Mexico’s executive branch.
Carmack-Altwies doubles down on denial by claiming that “even though district attorneys are part of the judicial system,” the state Supreme Court has “long recognized” that a DA office is “a quasi-judicial office, not a judicial office.” (Emphasis is original.)
Huh?
The nonsense peddled by Carmack-Altwies recalls the monotonous (and baseless) crusade by foes of a bright-line rule for the separation of powers in a different state in the American Southwest. The Nevada Policy Research Institute has fought, heroically, for more than a decade to enforce Article 3, Section 1 of the Silver State’s founding document: “The powers of the Government of the State of Nevada shall be divided into three separate departments … and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.”
The think tank’s latest lawsuit, filed in 2020, has targeted 11 legislators who retain “their employment in the executive branch of government.” The solons’ intransigence is so egregious, even Steve Sebelius, a liberal columnist for the Las Vegas Review-Journal, finds it objectionable: “The people writing the laws, enforcing the laws and interpreting the laws should not be the same individuals.”
Alexander Rae Baldwin III is a detestable man — and that’s being charitable. A nasty, violent, and arrogant “progressive,” it’s tempting to root against any effort made on his behalf, in any conflict. But Baldwin’s personal failings have no bearing on the important constitutional issue at hand. His lawyers are, essentially, correct in arguing that “Representative Reeb –who has publicly touted her prosecutorial expertise in connection with her promises to reform New Mexico’s criminal laws — is legislating while also executing those very same criminal laws by prosecuting Mr. Baldwin.” Let’s hope Judge Soomer agrees.
