STATE EX REL. SMITH v. Martinez

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New Mexico Compilation
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'00'05- 08:52:51 2011.12.16

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-043

Filing Date: November 21, 2011

Docket No. 33,029

STATE OF NEW MEXICO, ex rel., HON. JOHN ARTHUR SMITH,
HON. MICHAEL S. SANCHEZ, HON. HENRY KIKI SAAVEDRA,
HON. LUCIANO “LUCKY” VARELA, members of the New Mexico
Legislature and citizens of New Mexico,

Petitioners,

v.

HON. SUSANA MARTINEZ, Governor of the State of New Mexico,
HON. DIANNA J. DURAN, Secretary of State of New Mexico,

Respondents,

and

OFFICE OF THE ATTORNEY GENERAL,

Intervenor.

ORIGINAL PROCEEDING

Youtz & Valdez, P.C.
Shane Youtz
Gabrielle Valdez
Albuquerque, NM

for Petitioners

Jessica Hernandez
Jennifer L. Padgett
Matthew J. Stackpole
Gregory S. Shaffer
Santa Fe, NM

for Respondents

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Gary K. King, Attorney General
Scott Fuqua, Assistant Attorney General
Mark Reynolds, Assistant Attorney General
Santa Fe, NM

for Intervenor

OPINION

MAES, Justice.

{1} In the General Appropriation Act of 2011, the Legislature appropriated $150,000 to
the Department of Finance and Administration “[f]or disbursement to the New Mexico
mortgage finance authority to carry out the responsibilities, duties and provisions of the
regional housing law.” On April 8, 2011, the Governor signed the General Appropriation
Act of 2011; however, the Governor struck the “1” from the $150,000 appropriated by the
Legislature to the Department of Finance and Administration, thereby changing or “scaling”
the appropriation down to $50,000. In House Executive Message No. 31, the Governor
stated that she vetoed the “1” because, although she agreed with the Legislature that regional
housing oversight was a necessary expenditure, she “disapproved of the excessive part of the
appropriation,” evidently the vetoed $100,000.

{2} Citizens of the State of New Mexico, electors, taxpayers, and members of the New
Mexico Legislature (Petitioners) subsequently filed a Verified Petition for Writ of
Mandamus/Prohibition. See N.M. Const. art. VI, § 3 (“The supreme court shall have original
jurisdiction in quo warranto and mandamus against all state officers, boards and
commissions . . . .”). Petitioners sought a writ restoring the full appropriation, claiming it
was an unconstitutional application of the Governor’s partial veto authority. This Court
heard oral argument and granted Petitioner’s Writ of Mandamus/Prohibition. This Court
ordered that the Governor’s “partial veto that would allow scaling of appropriations [was]
invalid and unconstitutional” and restored the $150,000 Legislative appropriation. We now
issue this Opinion to further explain the order of this Court.

DISCUSSION

{3} Article III, Section 1 of the New Mexico Constitution sets forth the separation-of-
powers doctrine for state government. There are three distinct departments of government:
legislative, executive, and judicial. N.M. Const. art. III, § 1 (“[N]o 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, except as in this
constitution otherwise expressly directed or permitted.”).

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{4} Under Article IV of the New Mexico Constitution, the Legislature and the Executive
are given separate roles in respect to appropriations. The New Mexico Constitution vests
the power to appropriate money exclusively with the Legislature. N.M. Const. art. IV, § 16.
Our Constitution further requires that a law making an appropriation must “distinctly specify
the sum appropriated and the object to which it is to be applied,” with money being “paid
out of the treasury only upon appropriations made by the legislature.” N.M. Const. art. IV,
§ 30. The Governor has the power to “approve or disapprove any part or parts, item or
items, of any bill appropriating money, and such parts or items approved shall become a law,
and such as are disapproved shall be void unless passed over his [or her] veto.” N.M. Const.
art. IV, § 22.

THE GOVERNOR’S PARTIAL VETO AUTHORITY DOES NOT ALLOW THE
POWER TO REDUCE OR “SCALE” AN APPROPRIATION

{5} The Governor argues that she properly executed her partial veto power because “New
Mexic[o] governors have the ability to veto something smaller and more discrete than
‘items,’” and that “[o]ne hundred thousand is a ‘part’ of $150,000.00.” The Governor relies
on State ex rel. Coll v. Carruthers for the premise that “New Mexico differs from most other
states with item-veto provisions because it allows the broadest possible veto authority by
additionally providing authority to veto ‘parts’, not only ‘items.’” 107 N.M. 439, 442, 759
P.2d 1380, 1383 (1988) (per curiam).

{6} This Court’s partial veto decisions do not answer the question raised in this case, but
do contain principles about the line-item veto. In State ex rel. Dickson v. Saiz, this Court
held that the Governor’s partial veto power is a quasi-legislative function, which is an
exception to our separation of powers doctrine. 62 N.M. 227, 236, 308 P.2d 205, 211 (1957)
(per curiam) (“Our Constitution does not, necessarily, foreclose the exercise by one
department of the state of powers of another but contemplates in unmistakable language that
there are certain instances where the overlapping of power exists. Indeed, when the
Governor exercises his [or her] right of partial veto he [or she] is exercising a
quasi-legislative function.”). In Dickson, the Governor was presented with House Bill No.
155 and struck all language that would have made it possible to have saloons and bars open
on Sunday. 62 N.M. at 231, 238, 308 P.2d at 208, 212. This Court held that the Governor
was acting strictly within his quasi-legislative capacity because there was “no reducing, nor
any scaling, of appropriations.” Id. at 238, 308 P.2d at 212.

{7} In State ex rel. Sego v. Kirkpatrick, we held that the Governor’s power to impose a
partial veto is not an absolute power. 86 N.M. 359, 362, 524 P.2d 975, 978 (1974) (“The
power of veto, like all powers constitutionally conferred upon a governmental officer or
agency, is not absolute and may not be exercised without any restraint or limitation
whatsoever. The very concept of such absolute and unrestrained power is inconsistent with
the concept of ‘checks and balances’ . . . .”). The respondents in Sego, as in this case, relied
on the dictionary definitions of “item” and “part” to support their argument that a part is
inherently smaller than an item. 86 N.M. at 364, 524 P.2d at 980. This Court concluded,

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however, that there was not “any significant distinction between or among [the terms item
and part].” Id. (internal quotation marks omitted) (quoting State ex rel. Turner v. Iowa State
Highway Comm’n, 186 N.W.2d 141, 149 (Iowa 1971)). The purpose of including the terms
“part or parts” and “item or items” in our Constitution was to extend the partial veto power
beyond other states’ constitutions that limit the partial veto to items of appropriation and
general appropriation bills. Id. at 365, 524 P.2d at 981. This Court interpreted the
Governor’s partial veto power under Article IV, Section 22 to apply to “(1) bills of general
legislation, which contain incidental items of appropriation, as well as general appropriation
bills, and (2) to ‘items or parts’ thereof in addition to ‘items of appropriation.’” Sego, 86
N.M. at 364-65, 524 P.2d at 980-81. Thus, so long as the bill is a “bill appropriating
money,” the Governor may veto any part or item thereof, and not just a part actually
appropriating money.

{8} The Governor is correct that our Constitution allows the broadest possible veto
authority by providing authority to veto “parts,” not only “items.” In Coll, however, this
Court recognized the limitation of this veto power by clarifying that the “power of partial
veto is only a negative power to disapprove; it is not the power to enact or create new
legislation by selective deletions.” 107 N.M. at 442, 759 P.2d at 1383. Our case law
emphasizes the limitation of the Governor’s partial veto power by requiring that the veto
eliminate the whole of an item or part and prohibiting the striking of individual words that
result in legislation inconsistent with the Legislature’s intent. Sego, 86 N.M. at 365, 524
P.2d at 981 (“[A] partial veto must be so exercised that it eliminates or destroys the whole
of an item or part and does not distort the legislative intent, and in effect create legislation
inconsistent with that enacted by the Legislature, by the careful striking of words, phrases,
clauses or sentences.” (emphasis added)). By striking a single numerical digit, the Governor
did not eliminate the whole of the item; she distorted the Legislature’s intent to appropriate
$150,000 to the Department of Finance and Administration for the mortgage finance
authority. There is no authority to scale back: the Governor may strike the whole of the
appropriation or leave it intact; she may not conceive her own appropriation.

{9} The Governor cites numerous out-of-state cases to support her position that the
partial veto power includes the power to scale down an appropriation. The cases cited by
the Governor interpret other states’ constitutional partial veto powers, none of which are
analogous to our constitutional partial veto power. We need not rely on these cited cases
because, as discussed above, our case law sufficiently addresses the Governor’s partial veto
authority, including the Governor’s lack of authority to scale down an appropriation. See
State ex rel. Holmes v. State Bd. of Fin., 69 N.M. 430, 434, 367 P.2d 925, 928 (1961) (“[I]t
is generally held that the governor has no power to scale down an item in an appropriation
act.”). The Governor also argues that former New Mexico governors have used their partial
veto authority to reduce an appropriation without being challenged. While it is true that
legislative acquiescence to actions by the governor may indicate that the governor’s action
is proper, see State ex rel. Lee v. Hartman, 69 N.M. 419, 427, 367 P.2d 918, 924 (1961), it
remains the role of this Court to determine the constitutionality of an action.

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CONCLUSION

{10} The Governor’s partial veto that would allow scaling of appropriations is invalid and
unconstitutional. The Governor violated the separation of powers doctrine when she struck
the “1” from the $150,000 appropriation to the Department of Finance and Administration
“[f]or disbursement to the New Mexico mortgage finance authority to carry out the
responsibilities, duties and provisions of the regional housing law.” Accordingly, a writ of
mandamus has been issued ordering the reinstatement of the Legislature’s $150,000
appropriation.

{11} IT IS SO ORDERED.

_____________________________________
PETRA JIMENEZ MAES, Justice

WE CONCUR:

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
RODERICK T. KENNEDY, COA Judge
(sitting by designation)

Topic Index for State of New Mexico ex rel Smith v. Hon. Susana Martinez, Docket No.
33,029

CT CONSTITUTIONAL LAW
CT-NM New Mexico Constitution, General
CT-SP Separation of Powers

GV GOVERNMENT
GV-AP Appropriations
GV-EB Executive Branch

RE REMEDIES
RE-WM Writ of Mandamus
RE-WP Writ of Prohibition

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