     This decision was not selected for publication in the New Mexico Appellate Reports. Please see
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 1          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

 2 Opinion Number:

 3 Filing Date:             May 30, 2013
 4
 5 NO. 33,792

 6 STATE OF NEW MEXICO,

 7          Plaintiff-Petitioner,

 8 v.

 9   AMERICAN FEDERATION OF
10   STATE, COUNTY, AND MUNICIPAL
11   EMPLOYEES COUNCIL 18, AFL-CIO,
12   CLC, and COMMUNICATION WORKERS
13   OF AMERICA, AFL-CIO, CLC,

14          Defendants-Respondents.



15
16 ORIGINAL PROCEEDING ON CERTIORARI
17 Alan M. Malott, District Judge


18 Rodey, Dickason, Sloan, Akin & Robb, P.A.
19 Thomas L. Stahl
20 Edward R. Ricco
21 Albuquerque, NM
 1 for Petitioner


 2   Youtz & Valdez, P.C.
 3   Shane Youtz
 4   Stephen Curtice
 5   Albuquerque, NM

 6 for Respondent


 7                   DISPOSITIONAL ORDER OF AFFIRMANCE

 8   {1}   This certiorari petition having come before the full Court, and each member of

 9 the Court having studied the briefs, engaged in oral argument, and being otherwise

10 fully informed on the issues and applicable law; and

11   {2}   The Court of Appeals having issued a formal Opinion in this matter, State v.

12 American Federation of State, County, and Mun. Employees Council 18, 2012-

13 NMCA-114, _P3.d _, with which we agree and which sufficiently analyzes and

14 resolves the principal issues in this case; and

15   {3}   The members of the Court having concurred that it would better serve the

16 public interest to file this Order of Affirmance now, rather than subject the parties and

17 the public to the inevitable delay that accompanies a formal Opinion; and

18   {4}   The members of the Court having concluded that there is no reasonable

19 likelihood that a Decision or Opinion from this Court would materially advance the

20 law of this State; and

21   {5}   The members of the Court having agreed to invoke this Court’s discretion under
 1 Rule 12-405(B)(3) NMRA to dispose of a case by order, decision or memorandum

 2 opinion rather than formal opinion;

 3 IT IS THEREFORE ADJUDGED THAT:

 4   {6}   Having enacted the Public Employees Bargaining Act (the Act), NMSA 1978,

 5 Section 10-7E-1 to -26 (2003, as amended 2005), the New Mexico Legislature

 6 authorized the State, acting by and through representatives of its Executive branch, to

 7 negotiate and enter into binding contracts with representatives of organized labor,

 8 acting on behalf of those state employees choosing to become union members, and

 9 thereby to obligate the State, subject to legislative appropriation, to pay wages at the

10 negotiated level to those state employees covered by contract.

11   {7}   As set forth more fully in the Court of Appeals’ majority opinion, in 2005 the

12 State entered into contracts with organized labor pursuant to the Act and thereby

13 committed to future wages at specified levels for those state employees covered by

14 those contracts.    Those contracts create binding obligations on the State and

15 enforceable rights in those state employees covered by contract, conditioned on

16 legislative appropriation.

17   {8}   In 2008 the New Mexico Legislature appropriated sufficient funds to honor

18 those contracts for Fiscal Year 2009, covering the period July 1, 2008 through June

19 30, 2009.      Following the 2008 legislative session and notwithstanding that

                                              3
 1 appropriation, the State Personnel Board took actions to allocate a portion of those

 2 appropriated funds to purposes other than fulfillment of the State’s contractual

 3 obligations. The effect of this action was to deprive those state employees covered

 4 by contract of sufficient funds to honor those contracts. Instead, the State chose to

 5 provide increased wages to those employees not covered by contract who had no

 6 contractual rights at the expense of those state employees who had enforceable

 7 contractual rights.

 8   {9}    In doing so, the 2008 State Personnel Board, acting on behalf of the Executive

 9 branch, breached the State’s contractual obligations, and acted contrary to legislative

10 appropriation and to the Act. The rulings of both the district court and the Court of

11 Appeals correctly enforce the rights of those state employees covered by contract.

12 Accordingly those rulings are hereby AFFIRMED and these cases are remanded for

13 further action consistent with this Order.

14   {10}   IT IS SO ORDERED.



15                                          ___________________________________
16                                          PETRA JIMENEZ MAES, Chief Justice


17                                          ___________________________________
18                                          RICHARD C. BOSSON, Justice

                                                4
1   ___________________________________
2   EDWARD L. CHÁVEZ, Justice


3   ___________________________________
4   CHARLES W. DANIELS, Justice


5   ___________________________________
6   BARBARA J. VIGIL, Justice




      5
