State, ex rel. Coll v. Carruthers

• Decision Date: 02 August 1988
• Docket Number: No. 17587,17587
• Citation: 107 N.M. 439,759 P.2d 1380,1988 NMSC 57
• Parties: STATE of New Mexico, ex rel. Max COLL and Ben D. Altamirano, Petitioners, v. Hon. Garrey CARRUTHERS, Governor of the State of New Mexico, and Willard Lewis, Secretary of the Department of Finance and Administration of the State of New Mexico, Respondents.
• Court: New Mexico Supreme Court

Page 1380

759 P.2d 1380

107 N.M. 439

STATE of New Mexico, ex rel. Max COLL and Ben D. Altamirano Petitioners, v. Hon. Garrey CARRUTHERS, Governor of the State of New Mexico and Willard Lewis, Secretary of the Department of Finance and Administration of the State of New Mexico, Respondents.

No. 17587.

Supreme Court of New Mexico.

Aug. 2, 1988.

[107 N.M. 441] Carpenter & Goldberg, Joseph Goldberg, David J. Stout, Albuquerque, for petitioners.

Campbell and Black, Jack M. Campbell, Michael B. Campbell, Bradford B. Berge, John H. Bemis, Alex Valdez, Gen. Counsel Office of the Governor, Sp. Asst. Atty. Gen., Ted Apodaca, Gen. Counsel Dept. of Finance & Admin., Sp. Asst. Atty. Gen., Santa Fe, for respondents and real parties in interest.

OPINION

PER CURIAM.

The Chairman of the New Mexico House Appropriations and Finance Committee, Max Coll, and the Chairman of the New Mexico Senate Finance Committee, Ben Altamirano, petitioned the Supreme Court for a writ of mandamus directing Governor Garry Carruthers and Secretary of Finance and Administration, Willard Lewis, to perform their respective duties and administer the General Appropriation Act of 1988 (General Appropriation Act) as originally passed without reference to various "line-item" vetoes made by the Governor.

The General Appropriation Act was duly passed in the New Mexico State Senate and House of Representatives during the 1988 legislative session. The Act was then sent to Governor Carruthers for his approval or veto. Governor Carruthers sent back a message with several portions that were vetoed by him. Coll and Altamirano challenge the Governor's vetoes on the grounds they employ the partial veto power allowed by the New Mexico Constitution article IV, section 22 to illegally create new legislation or appropriations, distort legislative intent, and create legislation inconsistent with that enacted by the legislature by selectively striking words, phrases, clauses, or sentences.

At a hearing on the petition, and with the agreement of counsel, we held that with respect to the vetoes contained in subparagraphs D, E, and H of paragraph VII, the petition was denied. An alternative writ of mandamus issued with respect to the remaining vetoes which we now consider. We hold that all of the remaining vetoes, with the exception of Item B, are valid.¹

The separation of powers doctrine, as embodied in the New Mexico Constitution, states:

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, except as in this constitution otherwise expressly directed or permitted.

N.M. Const. art. III, Sec. 1.

The legislative power of New Mexico is vested in the Senate and House of Representatives which are designated as the legislature. N.M. Const. art. IV, Sec. 1. With few exceptions, money shall be paid out of the public treasury only upon appropriations made by the legislature. "Every law making an appropriation shall distinctly specify the sum appropriated and the object to which it is to be applied." N.M. Const. art. IV, Sec. 30. The Constitution of New Mexico does not define, describe, or limit the contents of a general appropriation bill. However, the constitution to the extent here material has expressed the condition that "[g]eneral appropriation bills shall embrace nothing but appropriations for the expense of the executive, legislative and judiciary departments.... All other appropriations shall by made by separate bills." N.M. Const. art. IV, Sec. 16.

The governor of New Mexico is the state's chief executive officer and has constitutional powers conferred upon him including veto power as set forth in article IV, section 22. Although the governor has no authority to appropriate money, he does have the power to exercise a partial veto where appropriations are concerned: "The governor may in like manner 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 veto, as herein provided." N.M. Const. art. IV, Sec. 22. This 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. State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 365, 524 P.2d 975, 981 (1974).

The judicial branch is constitutionally empowered to resolve conflicts between the legislative and executive branches when brought before the Supreme Court by a petition for writ of mandamus. N.M. Const. art. VI, Sec. 3. Furthermore, the court has the authority to review the Governor's vetoes under a theory of checks and balances. The Supreme Court of New Mexico recognizes that

[t]he 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,' which is basic to the form and structure of State government created by the people of New Mexico in their constitution, and is inconsistent with the fundamental principle that under our system of government no man is completely above the law.

Sego, 86 N.M. at 362, 524 P.2d at 978. (citation omitted).

Many state constitutions give the chief executive item-veto powers. The major factors which prompted drafting of constitutions to include the item-veto were: To prevent corruption, to prevent hasty and ill-conceived legislation, and most importantly, to prevent "logrolling" tactics by the legislature. Colorado Gen. Assembly v. Lamm, 704 P.2d 1371, 1383 (Colo.1985). Before the item-veto was incorporated into constitutions, a common practice of legislators was to include riders which were controversial or did not have adequate support to be passed on their own in general legislation. Id. A governor was then forced to veto the entire appropriation act in order to prevent the one objectionable portion from becoming law. To counter that effect governors were given the item-veto power. Id. 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".

We recognize that the normal course of action for the legislature to pursue in response to an executive veto is to attempt an override. N.M. Const. art. IV, Sec. 22. Nevertheless, it is not the only recourse and, as we carefully explained in Sego, mandamus is a proper procedure "to test the constitutionality of vetoes or attempted vetoes by the governor." 86 N.M. at 363, 524 P.2d at 979. As was noted in Colorado Gen. Assembly, 704 P.2d at 1377, "the delicate constitutional balance between the executive and the legislative branches of government" would be upset if we were to hold that the legislature may not challenge a gubernatorial veto until it has attempted by a two-thirds vote to enact a law which it initially was authorized to accomplish by a simply majority. However, a veto override is no substitute for unsound legislative enactments.

The first legislative restriction on appropriated funds we consider is Item A, which reads: "Funds appropriated to the second judicial district attorney shall not be expended for rental of parking space." The governor vetoed this language with the following specific objection: "This language could result in state vehicles being parked in completely unsecured areas, susceptible to extensive damage, and is therefore vetoed." In exercising his veto power, the governor utilized the line-item veto authority of article IV, section 22 of the New Mexico Constitution.

In restricting the expenditure of funds appropriated to the office of district attorney, the legislature performs not merely an appropriation oversight function, but it attempts to make detailed, miniscule, inconsequential executive management decisions. In this instance, the legislature should have limited itself to addressing matters of "significant financial impact" such as those we specifically approved in Sego, 86 N.M. at 367, 524 P.2d at 983. Counsel for both parties noted that approximately $4,000 was earmarked for rental of parking space if the legislature had not attempted its restriction. The total appropriation to the second judicial district attorney was $4,500,000. By attempting to detail the district attorney's expenditure, the legislature intruded into the executive managerial function. Such intrusion is inappropriate under our constitutional form of government and comes into conflict with the separation of powers doctrine.

In Anderson v. Lamm, 195 Colo. 437, 442, 579 P.2d 620, 624 (1978), the Colorado legislature was specifically prohibited from attaching "conditions to a general appropriation bill which purport to reserve to the legislature powers of close supervision that are essentially executive in character." This statement of law agrees with our own views on the subject. Although the facts before us are somewhat different than those in Anderson, we believe the proposition there stated provides persuasive authority for our position as well. In selecting a line which should not be crossed lest the legislature intrude on the executive managerial function, we realize our subjective evaluation of the facts underlies the principles and tests we espouse and rely upon. However, a line must be drawn. It appears to us the legislature has clearly crossed that line and trespassed into the executive domain.

The legislature's imposition of a limitation on the expenditure of funds for rental of parking space also falls into the category of general legislation. New...