State ex rel. Udall v. Public Employees Retirement Bd.
| Decision Date | 12 July 1994 |
| Docket Number | No. 14954,14954 |
| Citation | 1994 NMCA 94,118 N.M. 507,882 P.2d 548 |
| Parties | STATE of New Mexico ex rel. Attorney General Tom UDALL, Plaintiff-Appellant, v. PUBLIC EMPLOYEES RETIREMENT BOARD, and each member of the Board in his or her official capacity, Ben D. Altamirano, et al., Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
The New Mexico Constitution provides that the state legislature shall convene for a session not to exceed sixty days in odd-numbered years and a session not to exceed thirty days in even-numbered years. N.M. Const. art. IV, Sec. 5. Additional special sessions may be convened, art. IV, Sec. 6, but they may not exceed thirty days unless an impeachment trial is pending at the expiration of that period. Id.; art. IV, Sec. 5. On paper the intent is evidently to have the legislative business of the state conducted by a group of citizens who volunteer a few weeks of their time each year to public issues. The reality is rather different. Although members of the legislature still spend only an average of forty-five days a year in session (special sessions are infrequent and last only a few days), the complexity of modern society and public interest in state government make participation in the legislature virtually a full-time job. Legislators typically attend innumerable meetings, official and unofficial, and respond to countless requests and demands from constituents and other interested persons.
Yet, there is little material reward for this labor. During their terms of office legislators receive only (1) per diem payment of $75 for each day's attendance during legislative sessions, art. IV, Sec. 10(A); NMSA 1978, Sec. 2-1-8 (Repl.Pamp.1994) (2) twenty-five cents per mile for one trip each session to and from the capitol, id., and (3) per diem for attending interim committee meetings between sessions, art. IV, Sec. 10(B); NMSA 1978, Sec. 2-1-9 (Repl.Pamp.1994). These payments are not intended to enrich legislators but only to cover travel expenses. Perhaps they accomplish that purpose, but the per diem rates are hardly extravagant. The federal government's per diem rate for Santa Fe is $114. 58 Fed.Reg. 67,958 (1993) .
Service in the New Mexico legislature is undoubtedly a substantial financial sacrifice. Psychic reward is the chief compensation for this public service. In recognition of the financial sacrifice, the legislature has instituted a pension plan for its members. The pertinent provisions are as follows:
State legislator member coverage plan 1 is applicable to state legislators and lieutenant governors.
NMSA 1978, Sec. 10-11-39 (Repl.Pamp.1992).
Under state legislator member coverage plan 1, the age and service requirements for normal retirement are:
A. age sixty-five years or older and five or more years of credited service;
B. age sixty-four years or older and eight or more years of credited service;
C. age sixty-three years or older and eleven or more years of credited service;
D. age sixty years or older and twelve or more years of credited service; or
E. any age and fourteen or more years of credited service.
NMSA 1978, Sec. 10-11-40 (Repl.Pamp.1992).
A. Under state legislator member coverage plan 1, the annual amount of pension under form of payment A is equal to two hundred fifty dollars ($250) multiplied by credited service as a legislator or lieutenant governor, if the member served as legislator or lieutenant governor after December 31, 1959.
B. Under state legislator member coverage plan 1, the annual amount of pension under form of payment A is equal to forty dollars ($40.00) multiplied by credited service as a legislator or lieutenant governor, if all service as a legislator or lieutenant governor is prior to January 1, 1960.
NMSA 1978, Sec. 10-11-41 (Repl.Pamp.1992).
A member under state legislator member coverage plan 1 shall contribute one hundred dollars ($100) for each year of credited service earned after December 31, 1959.
NMSA 1978, Sec. 10-11-42 (Repl.Pamp.1992).
The state shall contribute amounts sufficient to finance the membership of members under state legislator member coverage plan 1 on an actuarial reserve basis.
NMSA 1978, Sec. 10-11-43 (Repl.Pamp.1992).
The equity and wisdom of this pension plan is a matter for the legislature and the governor. The judiciary plays no role in that determination. "[I]n constitutional adjudication, judges are not free to indulge in their private proclivities." State ex rel. Anaya v. McBride, 88 N.M. 244, 250, 539 P.2d 1006, 1012 (1975). It is, however, the role of the court (whether or not we wish it to be) to determine whether the legislative pension plan is compatible with the New Mexico Constitution. That is the subject matter of this litigation.
The Attorney General contends that the pension plan violates Article IV, Section 10, of the Constitution, which now reads:
Each member of the legislature shall receive:
A. as per diem expense the sum of not more than seventy-five dollars ($75.00) for each day's attendance during each session, as provided by law, and twenty-five cents ($.25) for each mile traveled in going to and returning from the seat of government by the usual traveled route, once each session as defined by Article 4, Section 5 of this constitution;
B. per diem expense and mileage at the same rates as provided in Subsection A of this section for service at meetings required by legislative committees established by the legislature to meet in the interim between sessions; and
C. no other compensation, perquisite or allowance. (Emphasis added.)
Before reaching the Constitutional issue, however, we must first address procedural matters raised by the Attorney General.
The Attorney General filed suit in Santa Fe County District Court on December 28, 1987, seeking a judgment that the legislative pension plan is unconstitutional and that a portion of the benefits already received must be repaid. Named as defendants were the Public Employees Retirement Board (PERB) and various plan participants. The case was assigned to District Judge James Blackmer, who on December 29, 1988, issued an order finding the plan unconstitutional and prohibiting the PERB from paying any benefits to former legislators or their survivors. Several defendants appealed. We dismissed the appeal on the ground that the order was not a final, appealable order because it did not resolve the Attorney General's claim for refunds.
On remand the case was assigned to Judge Joe Cruz Castellano, Jr., who had succeeded Judge Blackmer on the district court. On June 15, 1992, Judge Castellano conducted a hearing on a motion to vacate Judge Blackmer's order. The ground of the motion was that all plan participants were indispensable parties but some (the "unjoined participants") had not been made parties at the time of Judge Blackmer's ruling. Although the Attorney General did not oppose joinder of the additional participants, he did oppose vacation of Judge Blackmer's order. Judge Castellano permitted joinder, vacated Judge Blackmer's order, and then ruled that the plan was constitutional.
On appeal the Attorney General contends that (1) the unjoined participants were not truly indispensable because their interests were being well-protected by the defendants already in the suit and (2) even if they were indispensable, their prior absence was not a jurisdictional matter that required vacation of Judge Blackmer's order. See C.E. Alexander & Sons v. DEC Int'l, 112 N.M. 89, 811 P.2d 899 (1991). In addition, the Attorney General contends that under the law-of-the-case doctrine, see First Interstate Bank v. Heritage Square, 113 N.M. 763, 766-67, 833 P.2d 240, 243-44 (1992), Judge Castellano should not have revisited and reversed Judge Blackmer's decision regarding constitutionality.
We reject the Attorney General's contentions. Regardless of whether the unjoined participants were indispensable parties, the district court had authority to reconsider the earlier non-final ruling by Judge Blackmer. Although it would be grossly inefficient for district courts to review repeatedly their interlocutory rulings, the law-of-the-case doctrine does not prohibit the practice. In approving a district judge's grant of a motion for summary judgment after an earlier judge had denied the motion, our Supreme Court recently explained:
The district court "has the inherent authority to reconsider its interlocutory orders, and it is not the duty of the [district court] to perpetuate error when it realizes it has mistakenly ruled." Melnick v. State Farm Mut. Auto Ins. Co., 106 N.M. 726, 728, 749 P.2d 1105, 1107 (1988). The grant1 or denial of a motion for summary judgment is an interlocutory order, see SCRA 1986, 1-056(C), and, therefore, the district court could properly reconsider its previous ruling notwithstanding the fact that a different judge had issued that ruling.
Tabet Lumber Co. v. Romero, 117 N.M. 429, 431, 872 P.2d 847, 849 (1994) (). Given the importance of the issue of the constitutionality of the pension plan, it was in no manner inappropriate for Judge Castellano to overrule a prior interlocutory order that he considered erroneous.
We now address the merits. We hold that the legislative pension plan violates the New Mexico Constitution.
The first version of Article IV, Section 10,...
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