State Rep. challenges governor’s vetoes of tax omnibus

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Near the end of the 2023 New Mexico Legislative Session, the legislature passed a tax omnibus bill that was eventually signed by Gov. Michelle Lujan Grisham.

The tax omnibus bill, HB 547, took about a month to reach the final version that both the state House and state Senate agreed to send to Lujan Grisham for her consideration. 

Lujan Grisham approved the bill with heavy line-item vetoes.

Rep. Miguel Garcia, D-Albuquerque, filed for a writ of mandamus in the New Mexico Supreme Court on Wednesday. The filing stated that Lujan Grisham did not have the constitutional right to line item veto any of the tax omnibus bill since it did not include any appropriation.

A writ of mandamus is a court order to a government official “compelling performance of a ministerial act that the law recognizes as an absolute duty… it is used only when all other judicial remedies have failed,” according to Barron’s Law Dictionary.

“HB 547 is a tax bill. It is not a bill that appropriates money and the Governor cannot line item veto a single word from the bill,” attorney Jacob Candelaria told the NM Political Report via email Thursday. “The Governor exceeded her limited line item veto authority by striking the vast majority of the bill, including tax proposals that would exempt more Social Security retirement income from State Income Tax.” 

Candelaria is a retired state senator who was a Democrat until 2021 when he changed his affiliation to Decline to State following the most recent redistricting efforts. Candelaria frequently clashed with Lujan Grisham’s administration during his time as state senator.

The only constitutional actions available to the governor under the New Mexico Constitution with regard to HB 547 were to sign the bill, pocket veto the bill or veto the bill in its entirety, the filing stated.

“We take lawsuits filed against our office seriously and respect New Mexicans’ right to use the judicial system when seeking change,” governor’s office spokeswoman Caroline Sweeney told the NM Political Report  via email on Thursday. “We anticipate, however, that this suit will be dismissed after review by a judge.” 

HB 547 creates new or changed tax rebate obligations for the state, the bill does not appropriate any funds to pay those obligations.

“That is because other sections of existing law, in effect at the time of HB 547’s enactment, already appropriate funds necessary to meet the tax rebate obligation that HB 547 creates or amends,” the lawsuit stated. 

The state supreme court has yet to decide such as if a bill provides for a tax rebate or refundable tax credit is categorically a bill providing an appropriation subject to the governor’s line item veto and if bills that distribute and allocate tax revenue to different funds within the state treasury are considered appropriations.

“The Governor’s actions are an affront to the separation of powers that underpins our State government, and unlawfully encroach on the Legislature’s fundamental power to make the laws of this State,” Candelaria said. “We believe there is scant legal support for the Governor’s line item vetoes to HB 547, and our client, a long time and dedicated member of our State Legislature, looks forward to having the Supreme Court decide this issue.”

The filing asks the state supreme court to issue a Peremptory Writ of Mandamus to the New Mexico Compilation Commission Advisory Committee “to compile and publish the enrolled and engrossed version of HB 547 as the statutory law of the land, without any of the governor’s unconstitutional line item vetoes.” 

The filing cited case State ex rel. Sego v. Kirkpatrick a 1974 case that established that “an unconstitutional veto must be disregarded and the bill given the effect intended by the Legislature.”

No hearings have been set in this case.

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