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                                                New Mexico Compilation
                                              Commission, Santa Fe, NM
                                             '00'04- 12:22:12 2011.05.20

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-018

Filing Date: May 13, 2011

Docket No. 32,905

AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES, et al.,

       Petitioners,

v.

HON. SUSANA MARTINEZ,
Governor of the State of New Mexico,

       Respondent,

and

STATE OF NEW MEXICO,

       Real Party in Interest.

ORIGINAL PROCEEDING

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
{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

                                              2
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



       1
         Governor Martinez also terminated the Public Employee Labor Relations Director
on February 5, 2011. Petitioners also seek a writ prohibiting the Governor from “interfering
in the Board’s decision to hire an Executive Director.” The Governor agrees that she is not
empowered to hire the Executive Director and therefore will not interfere in the hiring for
this position. Finally, Petitioners did not seek the reinstatement of Dominguez.

                                             3
{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, 376
N.E.2d 1217, 1221 (Mass. 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

                                              4
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 a provision that enables members to serve
an unlimited number of terms. Sections 10-7E-8(B), (E). Article XX, Section 2
complements this scheme by requiring incumbent members to retain office “until his
successor has duly qualified.” Id. Therefore, by mandating a balanced and continuously
operational PELRB, the Legislature gave effect to its priority that labor relations between
government workers and the state be harmonious, cooperative, and coincide with “at all
times, the orderly operation and functioning of the state and its political subdivisions.”
Section 10-7E-2.

{9}     The removal of the board member selected by the unions casts a pall over the
operations of the PELRB and evinces a willingness to interfere with the unions’ right to
designate a board member of their choice. The Act expressly prohibits an employer from
interfering with a public employee’s rights under the Act. NMSA 1978, § 10-7E-19(B)
(2003). Through her actions, the Governor has disrupted the PELRB’s careful balance as
envisioned by the Legislature.

CONSTITUTIONAL DUE PROCESS PROHIBITS ARBITRARY REMOVAL OF
BOARD MEMBERS BY THE GOVERNOR WHO ADJUDICATE DISPUTES
INVOLVING THE GOVERNOR

{10} Due process considerations are also implicated because when the Governor reserves
the power to remove board members at any time and for any reason, the Governor exerts
subtle coercive influence over the PELRB, further compromising its balanced and fair
character. “A fair trial in a fair tribunal is a basic requirement of due process.” In re
Murchison, 349 U.S. 133, 136 (1955).

               At a minimum, a fair and impartial tribunal requires that the trier of
       fact be disinterested and free from any form of bias or predisposition
       regarding the outcome of the case. In addition, our system of justice requires
       that the appearance of complete fairness be present. The inquiry is not
       whether the [b]oard members are actually biased or prejudiced, but whether,
       in the natural course of events, there is an indication of a possible temptation
       to an average man sitting as a judge to try the case with bias for or against
       any issue presented to him.

Reid v. N.M. Bd. of Exam’rs in Optometry, 92 N.M. 414, 416, 589 P.2d 198, 200 (1979)
(citations omitted).

{11} What is significant in this case is that the PELRB adjudicates disputes involving the
Governor and all the myriad executive department agencies under her control, including
determining whether the Governor or her appointees have engaged in prohibited labor
practices under Section 10-7E-19. Because the PELRB is empowered to make decisions that

                                              5
may adversely affect the executive branch, the PELRB must remain free from the
executive’s control. The PELRB cannot remain free from the executive’s control or coercive
influence if we conclude that the members of the PELRB serve at the pleasure of the
Governor. The Act’s statutory scheme for the appointment of PELRB members provides
adequate guarantees that an independent, unbiased decision maker will be selected, and thus
comports with the requirements of due process. However, interpreting Article V, Section
5 to empower the Governor to arbitrarily remove its members would not comport with the
requirements of due process.

ESPINOSA IS INAPPOSITE BECAUSE BROAD REMOVAL AUTHORITY OVER
THE PELRB WOULD DIRECTLY CONTRAVENE THE LEGISLATURE’S
PURPOSE IN PROMULGATING THE ACT AND CONFLICT WITH THE
GOVERNOR’S DUTY TO FAITHFULLY EXECUTE THE LAWS

{12} The Governor urges us to adhere to our broad interpretation of Article V, Section 5
in Espinosa. Article V, Section 5, in relevant part, reads as follows: “The governor shall
nominate and, by and with the consent of the senate, appoint all officers whose appointment
or election is not otherwise provided for and may remove any officer appointed by him [or
her] unless otherwise provided by law.” A narrow majority of the Espinosa Court declared
a strong disapproval of implied abrogations of the Governor’s constitutional removal
authority. 2003-NMSC-017, ¶ 25 (citing Flaska v. State, 51 N.M. 13, 20, 177 P.2d 174, 178
(1946) (“It is presumed that the people expressed themselves in careful and measured terms
in framing the constitution and that they left as little as possible to implication.” (emphasis
added) (internal quotation marks and citations omitted))).

{13} In Espinosa, members of the Judicial Standards Commission (Commission)
challenged then-Governor Bill Richardson’s authority to remove the Commission’s six
gubernatorial appointees en masse. 2003-NMSC-017, ¶ 1. One argument advanced by the
Espinosa petitioners was that the language in Article VI, Section 32, which created the
Commission, “impliedly” prohibits the application of the Governor’s Article V, Section 5
removal powers to the Commission. 2003-NMSC-017, ¶ 18. The petitioners contended that
a provision setting forth staggered terms for Commission members, id. ¶ 18, coupled with
a provision that explicitly prescribes the manner by which Commission vacancies shall be
filled but is silent as to removal, evinced an “intent . . . to deny the Governor the authority
to remove members,” id. ¶ 23. We rejected the petitioners’ invitation to impliedly abrogate
the Governor’s removal power, finding that the Legislature has demonstrated a willingness
to “provide[] for both staggered terms and gubernatorial removal power,” id. ¶ 21, and
“frequently addresses both the power to fill a vacancy and the power to remove,” id. ¶ 23.
As a result, we concluded that Article V, Section 5 and Article VI, Section 32 coexist as
“harmonious constitutional provisions.” Id. ¶ 23. Having dispensed with the petitioners’
argument, the majority concluded that “[w]ithout a compelling reason to hold otherwise,”
Article V, Section 5 authorized the Governor to arbitrarily remove executive appointees from
the Commission. Espinosa, 2003-NMSC-017, ¶ 27.


                                              6
{14} In this case, there are three compelling reasons to hold otherwise. First, in Espinosa
the Governor had absolute appointment authority–that is, the Governor was at liberty to
appoint anyone he chose to the Commission. That is not so in this case, where the Governor
has a clear and indisputable duty to appoint those members designated by labor,
management, and a neutral designated by the labor and management designees. Second, in
Espinosa the appointees were not empowered to adjudicate disputes involving the Governor.
In this case, the PELRB must decide disputes involving the Governor. Third, in Espinosa
we could read the competing constitutional provisions harmoniously, whereas in this case,
we cannot read the competing duty of the Governor to faithfully execute the laws, with her
appointment and removal authority, or with the due process requirements of our Constitution
as interpreted by this Court.

CONCLUSION

{15} For the foregoing reasons, a writ of mandamus has issued ordering the reinstatement
of members Boyd and Westbrook to the PELRB, effective immediately, and otherwise
enjoining their removal.

{16}   IT IS SO ORDERED.

                                             ______________________________________
                                             EDWARD L. CHÁVEZ, Justice

WE CONCUR:

______________________________________
PATRICIO M. SERNA, Justice

______________________________________
PETRA JIMENEZ MAES, Justice

______________________________________
RICHARD C. BOSSON, Justice

______________________________________
CELIA FOY CASTILLO, Judge
Sitting by Designation

Topic Index for AFSCME v. Martinez, Docket No. 32,905

AL                    ADMINISTRATIVE LAW AND PROCEDURE
AL-AL                 Administrative Law, General
AL-DU                 Administrative Law, Due Process
AL-LI                 Legislative Intent

                                            7
CP      CIVIL PROCEDURE
CP-DP   Due Process

CT      CONSTITUTIONAL LAW
CT-DP   Due Process
CT-CG   Constitutional Law, General

EL      EMPLOYMENT LAW
EL-LU   Labor Unions

GV      GOVERNMENT
GV-CM   Commissions
GV-EB   Executive Branch
GV-RA   Regulatory Authority

RE      REMEDIES
RE-EO   Extraordinary Writs
RE-WM   Writ of Mandamus

ST      STATUTES
ST-CS   Conflicting Statutes
ST-LI   Legislative Intent




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