Denish v. Johnson
| Decision Date | 29 January 1996 |
| Docket Number | No. 23182,23182 |
| Citation | 121 N.M. 280,910 P.2d 914,1996 NMSC 5 |
| Parties | , 106 Ed. Law Rep. 1349 Diane D. DENISH and J. Michael Kelly, Petitioners, v. Hon. Gary JOHNSON, Governor of the State of New Mexico, Respondent. |
| Court | New Mexico Supreme Court |
(1) Diane D. Denish and J. Michael Kelly applied to this Court with an Emergency Verified Petition for Writ of Mandamus and Request for Immediate Stay, to prevent Governor Gary E. Johnson from removing them from their positions as regents of New Mexico Institute of Mining and Technology and appointing their replacements. We granted the Stay and issued an Alternative Writ of Mandamus ordering the parties to brief whether the terms of Denish and Kelly have expired. We conclude that their terms have expired and that the Governor may nominate their successors in accordance with the State Constitution. We also find that the initial method by which the Governor attempted to remove Denish and Kelly was unconstitutional. However, because the Governor has agreed that Denish and Kelly are entitled to remain in their respective positions until their successors are appointed in accordance with the State Constitution, we need not issue a peremptory writ of mandamus.
(2) New Mexico Institute of Mining and Technology--commonly known as "New Mexico Tech"--is an undergraduate and graduate school located in Socorro, New Mexico. As required by the New Mexico Constitution, New Mexico Tech is controlled and managed by a board of five regents who are chosen by the Governor with the consent of the State Senate. N.M. Const. art. XII, § 13 (Cum.Supp.1995). Before 1994 all five regents were qualified electors of the state who served six year terms. Id. Under an amendment to the Constitution approved by the voters in 1994, one position on the Board of Regents is now filled by a student who is attending New Mexico Tech. See 1993 N.M.Laws, S.J.Res. 18, § 1 at 4446-49 ().
(3) On February 2, 1987, Robert O. Anderson received a letter of appointment to the New Mexico Tech Board of Regents from then-Governor Garrey Carruthers. Anderson's term was effective January 29, 1987, and was to end six years later on January 1, 1993. On January 18, 1989, Governor Carruthers notified Dr. Carol Rymer that he had appointed her to the New Mexico Tech Board of Regents. Her term was effective January 1 of that year and was to end six year later on January 1, 1995.
(4) In July 1991 then-Governor Bruce King was informed by Anderson that he would be resigning his position as regent. In September of the same year, Rymer gave similar notice to the Governor.
(5) On December 9 of that same year, Governor King appointed Denish to replace Rymer and Kelly to replace Anderson. Inexplicably, the original letters of appointment for both Denish and Kelly specified five-and-one-half-year terms, running from January 1, 1992 to July, 1, 1997, rather than the constitutionally mandated six-year terms. These letters were apparently later rewritten. However, the letters still conferred upon the appointees an improper term length of five years, ending January 1, 1997, rather than six years.
(6) On January 21, 1992, Laurence H. Lattman, President of New Mexico Tech, sent a letter to Governor King's office. Lattman suggested that there were errors in the letters of appointment sent to Denish and Kelly. He noted that "a regent's term is normally six years, but Ms. Denish and Mr. Kelly were appointed for less than six years." He also suggested that when a regent is appointed to fill a midterm resignation, he or she should serve only for the unexpired term; this would preserve a system of staggered terms and insure that no more than two regents are replaced in any given year. He pointed out, however, that should Denish and Kelly serve the full five years granted by Governor King, the terms of four of the five regents would expire at the same time in 1997. On the other hand, this simultaneous expiration of appointments would not occur if Denish and Kelly merely completed the terms of their predecessors.1
(7) Governor King apparently did not act on Lattman's letter and no action was taken to correct these errors. Rather, on January 31, 1992, the Governor submitted the appointments of Denish and Kelly to the New Mexico State Senate for its consent. Senate Executive Message No. 19 (1992) ("Messages From The Governor" to the Senate); see N.M. Const. art. XII, § 13. Both appointments were confirmed by the Senate on February 6.
(8) No further action was taken on the appointments of Denish and Kelly until three years later, when current Governor Gary Johnson, on May 1, 1995, advised Denish by letter that her term as regent had ended. He explained:
On January 1, 1992, you were appointed to fill the position formerly held by Dr. Carol Rymer. Dr. Rymer was appointed on January 1, 1989; the term of her appointment was until January 1, 1995. Your appointment should have been for the unexpired term.
The six year-terms of the Board of Regents are staggered to maintain continuity and historical knowledge on the Board. Pursuant to the New Mexico Constitution, Article XX, Section 2, appointees hold office until a successor has been appointed.
I am writing to thank you for your service on the Board of Regents and to advise you I have appointed your successor, who will take office immediately.2
Denish sent a reply, dated May 10, 1995, stating that she could not be removed from office for the reasons suggested by the Governor. She made clear she intended to complete her term until it ended on January 1, 1997, as specified in Governor King's letter of appointment.3
(9) Governor Johnson sent letters to both Denish and Kelly on August 11, 1995, reiterating much of the information in his first letter to Denish. He concluded by telling Denish, "I have appointed your successor, Randall Horn of Bernalillo, who will take office immediately."4 Similarly, the Governor informed Kelly that he would be replaced by "Dr. Robert E. Taylor of Silver City, who will take office immediately."5
(10) On the same day, the Governor advised Horn and Taylor that he had appointed them to the New Mexico Tech Board of Regents and that their terms commenced "immediately." He indicated that they were receiving "recess" appointments, presumably because they were appointed while the state legislature was in recess. He stated in the letters:
This recess appointment will remain in effect until you are confirmed by the New Mexico State Senate at the next session of the Legislature, at which time the appointment will be for the remainder of the term of office. In accordance with the provisions of the New Mexico Constitution you have all the powers, duties, and authority of the position.6
The Governor initiated the Senate approval process on August 25, 1995, with a letter to Manny Aragon, President Pro Tem of the Senate, submitting the appointments of Horn and Taylor "to the Interim Senate Rules Committee for their advice, consent and subsequent recommendation to the Forty-Second Legislature, Second Session...."7
(11) On August 18, 1995, Kelly wrote to the Governor disputing the Governor's power to replace him summarily. Kelly declared that he fully intended to complete his term ending January 1, 1997.8 Kelly received a reply on August 30 in which the Governor reiterated that Kelly should have been appointed only for the period of his predecessor's unexpired term. "I regret that this happened," wrote the Governor, "but there is no alternative available to me except to void the incorrect term and adhere to the constitutionally mandated requirement of staggered terms." From this letter Kelly learned that his seat on the Board of Regents would be assumed by Taylor at the forthcoming September 19 board meeting.9
(12) Kelly at that time was chairman of the Board of Regents, and traditionally it was his responsibility to call a meeting of the board. Kelly wrote a letter on September 12, 1995, to Dr. Dan Lopez, President of New Mexico Tech, in which he cancelled the upcoming board meeting in order to avoid "an unnecessary and unpleasant confrontation at the September 19 meeting."10 Although Kelly cancelled the meeting, Regent Steve S. Torres, Jr., three days later on September 15, designated himself "Temporary Chairman" of the New Mexico Tech board, and scheduled a meeting for 10:00 a.m. on September 19. He published an agenda which included the "Election of Officers."
(13) In response Denish and Kelly applied to this Court on September 18 for an Emergency Verified Petition for Writ of Mandamus and Request for Immediate Stay. We assumed jurisdiction under New Mexico Constitution, Article VI, Section 3 (Repl.Pamp.1992) (), and under New Mexico Constitution, Article XII, Section 13 ().
(14) Denish and Kelly petitioned for an immediate stay to prevent the Governor from authorizing Horn and Taylor to participate as if they were New Mexico Tech regents at the September 19 meeting. In their petition they also requested that we enter a writ of mandamus prohibiting the Governor from removing them from office in violation of the State Constitution. We granted an Order of Stay preventing Horn and Taylor from participating on the Board of Regents at New Mexico Tech. We also issued an Alternative Writ of Mandamus ordering the parties to brief...
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