A highly unusual legal proceeding will unfold Wednesday as a coalition of state court judges will try to convince a New Mexico Supreme Court panel that Gov. Susana Martinez lacked the authority to veto an 8 percent pay raise approved by the Legislature for the judiciary.
The raise was a combination of the 3 percent increase given to all state employees and an additional 5 percent raise given only to state judges as part of the state’s budget for the 2015 fiscal year, which starts July 1.
But Martinez used her veto power to eliminate the judges’ raises, saying the full 8 percent pay increase was too much when other state employees were receiving just 3 percent raises. Martinez said in her veto message that the two components of judicial pay raises could not be separated, so the entire raise was eliminated.
“Petitioners are dissatisfied with the outcome of the constitutional legislative process, and are now using their own branch of government, this Court, to infringe upon the constitutional powers of the executive for their own benefit,” the governor’s brief argues.
The outcome will affect the pay of state’s five Supreme Court justices, four of whom declined to hear the case. Chief Justice Barbara Vigil and Justices Edward Chavez, Charles Daniels and Petra Jimenez Maes all stepped aside.
That leaves Justice Richard Bosson overseeing a panel of four retired state judges – former Supreme Court Justice Patricio Serna, former Court of Appeals Judges A. Joseph Alarid and Celia Foy Castillo, and former state District Judge James Hall – who have been appointed to decide the judicial pay dispute.
The coalition of judges filing the suit include state district, metropolitan and magistrate judges and two Democratic state lawmakers. Represented by Albuquerque attorney Ray Vargas, they argue the governor’s veto is invalid because Martinez crossed out the judicial base pay from which other salaries are calculated. They say that veto effectively deleted the judges’ entire salary rather than just the proposed raise.
The judges, who note in their legal filings that state statute requires judicial pay to be set by the Legislature, argue the vetoed budget is unworkable because Martinez eliminated the judges’ base pay. They say state law does not allow past years’ judicial pay rates to be carried over to the current year, although state budgets in past years routinely have relied on that practice.
Martinez “takes an extreme and unfounded position, asking this Court to read reversionary language into the statute that plainly is not present in it, or elsewhere,” the judges argue.
The Governor’s Office has countered that establishing judges’ base salary in the budget is required only in years judicial pay is being increased. Otherwise, the pay given to judges in the prior year carries over, the governor’s lawyers argue.
“The reality is that the governor’s veto … simply removed the section that would have authorized a judicial pay raise, and left existing salaries intact and funded,” the Governor’s Office says in its court filings. “As vetoed, this year’s budget looks identical to the general appropriation acts in dozens of other years since 1953, when the legislature has simply omitted any authorization of new judicial salaries.”
Responding to the claim that the veto is unworkable because judges’ pay raises were only partly deleted, the Governor’s Office said the budget retains mechanisms for surplus money to revert back to the state budget after it goes unspent on the now-prohibited judicial pay raises.
The judges also argue the governor’s veto resulted in “stripping the Legislature of its duty to set, and provide for, judicial salaries as mandated” by the state Constitution.
The Governor’s Office countered that claim by asserting that the New Mexico Constitution requires judicial pay to be set “by law,” a process that involves passing “bills” that are subject to review by the executive branch and the governor’s broad veto power.
“The partial veto in this instance was in strict compliance with the state constitution and relevant case law, and it should be upheld,” the Governor’s Office said in its legal filings.
The governor’s lawyers also said in court filings that the governor disapproved salary increases for “elected officials and political appointees across state government – including her own staff and political appointees throughout the executive branch, political appointees at the Attorney General’s Office, justices of the Supreme Court, other elected judges and elected district attorneys.”
Only the judges have filed suit.