Am. Fed'n of State v. Martinez

Decision Date13 May 2011
Docket NumberNo. 32,905.,32,905.
Citation150 N.M. 132,257 P.3d 952,2011 -NMSC- 018
PartiesAMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, et al., Petitioners,v.Hon. Susana MARTINEZ, Governor of the State of New Mexico, Respondent,andState of New Mexico, Real Party in Interest.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Youtz & Valdez, P.C., Shane Youtz, Albuquerque, NM, for Petitioners.Jessica Hernandez, Jennifer L. Padgett, Matthew J. Stackpole, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Justice.

{1} May the Governor use the broad removal authority under Article V, Section 5 of the New Mexico Constitution to remove members of the Public Employee Labor Relations Board (PELRB) who have the responsibility to adjudicate the merits of disputes involving the Governor? We answer this question of first impression in the negative for three reasons. First, none of the PELRB members serve at the pleasure of the Governor because the Public Employee Bargaining Act (the Act) obligates the Governor to appoint one member recommended by organized labor, one member recommended by public employers, and one neutral member jointly recommended by these two appointees. Second, the Governor's responsibility under the Act and Article V, Section 4 of the New Mexico Constitution to “take care that the laws be faithfully executed” clearly requires that the Governor respect the Act's requirement for continuity and balance by not attempting to remove appointed members of the PELRB. Third, constitutional due process requires a neutral tribunal whose members are free to deliberate without fear of removal by a frequent litigant in that forum, such as the Governor. Accordingly, a writ of mandamus has issued ordering the reinstatement of PELRB members John Boyd and Duff Westbrook, effective immediately, and otherwise enjoining their removal.

BACKGROUND

{2} The PELRB is composed of three members appointed by the Governor, whose appointment power is circumscribed as follows: “The governor shall appoint one member recommended by organized labor representatives actively involved in representing public employees, one member recommended by public employers actively involved in collective bargaining and one member jointly recommended by the other two appointees.” NMSA 1978, § 10–7E–8(A) (2003). The Act is silent regarding how and whether a board member may be removed. On March 1, 2011, Governor Susana Martinez removed all members of the PELRB. John Boyd was the member duly appointed by the Governor's predecessor on the recommendation of labor, and his term expires on June 30, 2011. Martin Dominguez was the member duly appointed by the Governor's predecessor on the recommendation of public employers, and his term expires on June 30, 2012. Duff Westbrook was appointed as the neutral board member on the recommendation of Boyd and Dominguez. Westbrook's term expired on June 30, 2010. However, under the provisions of Article XX, Section 2 of the New Mexico Constitution, Westbrook serves until his successor is duly qualified, unless he is lawfully removed. See Denish v. Johnson, 1996–NMSC–005, ¶ 54, 121 N.M. 280, 910 P.2d 914. All PELRB members serve three-year terms and are eligible for reappointment to an unlimited number of terms. Section 10–7E–8(B).

{3} The PELRB has rule-making authority, NMSA 1978, § 10–7E–9(A) (2003), and it is empowered to adjudicate disputes and enforce the provisions of the Act, NMSA 1978, § 10–7E–12(A)(3), (C) (2005). With respect to hearings, the Legislature mandated that the PELRB adopt procedures that meet all minimal due process requirements of the federal and state constitutions. Section 10–7E–12(B). Because the State is a public employer subject to the provisions of the Act, the PELRB will adjudicate disputes involving the Governor. NMSA 1978, § 10–7E–4(S) (2003) (stating that a public employer includes the state and its political subdivisions). According to Petitioners, seventeen cases currently pending before the PELRB directly involve the Governor's executive department, a contention unchallenged by the Governor.

{4} Petitioners are organized labor representatives actively involved in representing public employees. They seek a writ of mandamus prohibiting the Governor from removing Boyd and Westbrook from the PELRB,1 arguing that the Governor's removal authority under Article V, Section 5 does not extend to members of the PELRB because the Governor's appointment of its members is purely ministerial, and their removal would violate the separation of powers doctrine and offend due process. In order for Petitioners to prevail, we must be persuaded that a writ of mandamus is being issued only to compel the performance of a ministerial duty that is clear and indisputable. New Energy Econ., Inc. v. Martinez, 2011–NMSC–006, ¶ 23, 149 N.M. 207, 247 P.3d 286. A writ of mandamus may be used in a prohibitory manner to prohibit unconstitutional official action. See Kiddy v. Bd. of Cnty. Comm'rs, 57 N.M. 145, 152, 255 P.2d 678, 683 (1953) (“Public functionaries may be restrained by mandamus from doing what they know is an illegal act.”). In considering whether to issue a prohibitory mandamus, we do not assess the wisdom of the public official's act; we determine whether that act goes beyond the bounds established by the New Mexico Constitution. State ex rel. Clark v. Johnson, 120 N.M. 562, 570, 904 P.2d 11, 19 (1995).

{5} The Governor counters that her actions are consistent with this Court's broad interpretation of Article V, Section 5 in State ex rel. New Mexico Judicial Standards Commission v. Espinosa, 2003–NMSC–017, 134 N.M. 59, 73 P.3d 197. In Espinosa, we declined to abrogate the Governor's removal authority by implication, instead requiring an express limit on the power articulated by the Legislature. Id. ¶ 25. The Governor argues that because the Act does not expressly curtail the Governor's removal authority, she was authorized to remove Boyd and Westbrook from the PELRB. If our consideration of the issue were limited to the Act, we might agree with the Governor. However, the competing constitutional provisions that require the Governor to faithfully execute the laws and to comply with the due process clause, which has been interpreted to require a neutral tribunal not subject to upheaval through removal by one of the litigants, compel our conclusion that the Governor may not arbitrarily remove members of this adjudicatory board.

THE GOVERNOR MUST ENSURE THAT THE INTENDED GOALS OF DULY ENACTED LEGISLATION ARE EFFECTUATED

{6} Article III, Section 1 of the New Mexico Constitution sets forth the general parameters of the separation of powers in state government. Article IV empowers the Legislature to create the law. Article V, Section 4 requires the Governor to “take care that the laws be faithfully executed.” In order to carry out this constitutional mandate, the Governor is required to apply his or her full energy and resources to ensure that the intended goals of duly enacted legislation are effectuated. Op. of the Justices to the Senate, 375 Mass. 827, 376 N.E.2d 1217, 1221 (1978).

{7} The question in this case is whether the Governor's removal of the members of the PELRB is at odds with the Governor's responsibility to ensure that the Act's intended goals are effectuated. We conclude that it is. Under the Act's structure, the Governor does not have the absolute power to appoint any person to the PELRB. The Governor has a clear and indisputable duty to appoint one representative for labor, one for management, and the third based on the designation by the other two appointees. Section 10–7E–8(A); S. Barry Paisner & Michelle R. Haubert–Barela, Correcting the Imbalance: The New Mexico Public Employee Bargaining Act and the Statutory Rights Provided to Public Employees, 37 N.M. L.Rev. 357, 377 (2007) (“The governor is required to appoint a member that has been recommended by organized labor, a member that has been recommended by public employers, and a member that the two other appointees have jointly recommended.” (emphasis added)). When labor, management, or the two appointees insist on recommending only one person to the Governor for appointment, the Governor, under the plain wording of the Act, must appoint the person who was recommended.

{8} The Legislature's stated purpose in promulgating the Act sets forth the rationale for the Governor's limited role in the appointment of PELRB members and the importance of a continuously operating PELRB. In particular, the Legislature established the following purpose for the Act:

The purpose of the Public Employee Bargaining Act is to guarantee public employees the right to organize and bargain collectively with their employers, to promote harmonious and cooperative relationships between public employers and public employees and to protect the public interest by ensuring, at all times, the orderly operation and functioning of the state and its political subdivisions.

NMSA 1978, § 10–7E–2 (2003). These notions of “harmonious and cooperative relation[s] and the “orderly operation and functioning of the state have been interpreted by the Court of Appeals to encompass a “balancing of policies” in crafting the Act. Id.; see also Int'l Ass'n of Firefighters v. City of Carlsbad, 2009–NMCA–097, ¶ 13, 147 N.M. 6, 216 P.3d 256. In the context of the PELRB's composition, the Court of Appeals has concluded that the Legislature intended the PELRB to be a “balanced and, therefore, neutral body.” City of Albuquerque v. Montoya, 2010–NMCA–100, ¶ 10, 148 N.M. 930, 242 P.3d 497, cert. granted, 2010–NMCERT–010, 149 N.M. 65, 243 P.3d 1147. This neutral and balanced character is achieved by allowing both labor and management to designate one member and then empowering those two representatives to select a neutral, consensus third member. See id. ; § 10–7E–8(A). To ensure a continuously operating PELRB, the Legislature established a board with three staggered terms and enacted...

To continue reading

Request your trial
13 cases
  • Pirtle v. Legislative Council Comm. of the N.M.
    • United States
    • New Mexico Supreme Court
    • 30 Junio 2021
    ... ... 3 {3} The pandemic was met with an immediate and concerted response from our state's executive branch. On March 11, 2020, contemporaneous with the reporting of the first confirmed ... See, e.g. , New Energy Econ., Inc. v. Martinez , 2011-NMSC-006, 13, 149 N.M. 207, 247 P.3d 286 (reiterating that "[t]his Court, in its ... ...
  • Hendrickson v. AFSCME Council 18, 20-2018
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 26 Marzo 2021
    ... ... Human Services Department ("HSD") and was a dues-paying member of the American Federation of State County and Municipal Employees Council 18 ("AFSCME" or "Union"). He resigned his membership in 2018 ... See AFSCME v. Martinez , 150 N.M. 132, 257 P.3d 952, 953 (2011). The court observed that "[b]ecause the PELRB is ... ...
  • State ex rel. Riddle v. Oliver
    • United States
    • New Mexico Supreme Court
    • 6 Mayo 2021
    ... ... Martinez, in his official capacity as Clerk of Guadalupe County ; C.J. Garrison, in her official capacity as Clerk of Harding County; Melissa K. De La Garza, ... ...
  • State v. Oliver
    • United States
    • New Mexico Supreme Court
    • 19 Diciembre 2019
    ... 456 P.3d 1065 STATE of New Mexico ex rel., John P. Sugg, Dianna Luce, Francesca Martinez-Estevez, Clint Wellborn, Donald Gallegos, Andrea Reeb, Paula Pakkala, and Lemuel L. Martinez, Petitioners, v. Maggie Toulouse OLIVER, Secretary of ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT