Why the NM Supreme Court Should Rule as Unconstitutional, the Amendment Allowing Gov to Appoint PRC Commissioners

Today we revisit a 2020 Constitutional Amendment that a coalition of indigenous organizations is asking the NM Supreme Court to overturn. We outline why Retake and Indivisible ABQ supported the indigenous groups and what is at stake. Before we get to this important issue, we describe how the 2023 legislative session may be the most impacful in many years and how we must prepare. Let’s dig in.

Huddle Time– The Reason We Canvassed, Called & Contributed… to get things done. Now’s Our Time!

Many, perhaps most of you, played an active part in the midterms. You didn’t do it for the sheer fun of it, but so that conditions would be right for passing transformational legislation. Thanks to NM’s blue tsunami, mission accomplished. We have a state House and Senate with strong Dem majorities and a few less Democratic obstacles to impede us. We have a governor who is far more likely to sign progressive legislation than Mark Ronchetti. And we have allies who have been honing plans and transformational bills for 2023. Now they just need us to communicate our priorities clearly and compellingly to the community and our legislators. That’s what our huddles are all about.

The Huddles are highly interactive, with attendees weighing in on their priorities and sharing what they know about their legislators’ readiness to support important legislation. Together we craft communication strategies and identify legislators who need to hear from us.

Never joined a huddle? Give it a try. You’ll learn more about how the legislature works, how we advocate for good bills and you’ll meet like minded advocates and new friends, all while seated on your couch. Join us, this Weds, Nov. 30, from 6-7. Click here to register. You must register to attend. Hope to see you Weds.

Also, see the end of this post for info on next week’s compelling discussion on ethics in state government organized by NM In Depth.

A Governor-Led Coup at the PRC.
Can the Supreme Court Halt this Train?

When you were voting in 2020, how many of you realized that the 2020 NM Constitutional Amendment eliminating elections for PRC Commissioners, also gave the Governor the right to remove from the Commission any Commissioner at any time, and for any or no reason? Me either. I voted against the Amendment because I didn’t want this or any future governor appointing commissioners. I wanted to vote and I wanted five commissioners with each representing a distinct geographic region and constituents to whom they would be accountable. That was more than enough reasons for me.

But not long after the Amendment passed, debate about what it meant surfaced and from that debate, it appears that the Amendment was so poorly framed that legal experts don’t agree upon the powers the Amendment bestows upon the Governor. In this context, it is apparent that voters had no clear idea what they were voting on in 2020. The plot thickens.

In September, 2022 — Indigenous Lifeways, New Mexico Social Justice Equity Institute, and Three Sisters Collective submitted a petition asking the Supreme Court to find as unconstitutional the Amendment approved by voters in 2020. Their position is that the Amendment language did not clearly lay out what the amendment would and wouldn’t do. In essence, the petitioners assert that the Amendment language misled voters by omitting important information about what approval of the Amendment would authorize. Last month, Retake Our Democracy and Indivisible ABQ filed a joint Amicus brief in support of the petition filed by the indigenous groups. If the Supreme Court agrees with the petitioners, their decision may prevent the appointment process from proceeding. How did this all come about?

To refresh your memories before 2018, Commissioners Sandy Jones, Lynda Lovejoy, and Patrick Lyons would routinely ignore Hearing Examiner findings and vote to advance utility interests at great expense to ratepayers and the planet. They were also notoriously unprepared for hearings and easily misled by industry/ utility arguments that had been rejected by Hearing Examiners. And so in 2017 the legislature passed legislation to conduct an independent study of the operations and staffing of the PRC. National Regulatory Research Institute (NRRI) was selected to conduct the study. At about the same time, beginning in 2018, a series of elections, including the defeat of Lyons and Jones, resulted in a much more responsible PRC who more consistently delivers decisions holding utilities accountable and rejected a proposed merger of PNM and Avangrid. NM’s democratic process had held the PRC accountable and created a Commission prepared to do the work of the people. But these decisions were not aligned with the Governor’s and her allies’ priorities or her plan for hydrogen hubs in NM. Her fear was that her hydrogen hub plans and/or another round of merger deliberations would be challenged by an effective PRC with Commissioners who listen to constituents and comb though tomes of legal briefs to get to the truth, not just rubber-stamp industry plans. And so, a barrage of stories and quotes began to surface bemoaning how inept, ineffective, and inefficient the PRC was, most often citing horrible commissioners from decades ago. And grasstops organizations like the Sierra Club and CVNM began echoing the message that the PRC needed reform. Keep in mind, while New Energy Economy, Retake, Indivisible and others were sounding alarms about the amendment, groups like Sierra Club and CVNM were supporting it. Keep that in mind when you receive info from those two organizations.

The PRC recognized that they were severely under-staffed and under-funded and welcomed the study conducted by the NRRI, a highly credible research group that had conducted dozens of such studies. The NRRI study laid out in detail how the PRC struggled from under-staffing and under-funding when compared with other utility commissions. They offered clear recommendations for how to improve PRC functioning. Nowhere in that report was there any mention of eliminating elections and having the governor appoint commissioners. Retake published a post in October 2020, weeks before the election, outlining all that was wrong with the amendment and how misleading the campaign had been in supporting its passage. Click here to review that analysis.

If the governor had truly sought a strong, independent PRC, she could have adopted the NRRI’s recommendations from its excellent report and pressed for more funds to provide Commissioners with staff support as reflected in national best practice. We provide the gist of their recommendations here:s

  • The NM PRC relies upon funding from the General Fund to underwrite their operations instead of the fees it levees in conducting its regulatory functions. This is contrary to most regulatory agencies, causes the PRC to be dependent upon the legislature to fund its operations, and results in PRC staffing fluctuating with up and downturns of the state economy and the political biases of the majority party. If funded by fees, this would not occur and it would allow the PRC to more easily fill vacant positions and provide sustained professional development for those staff.
  • The NRRI found that, due to a lack of adequate funding, the NM PRC operates with a fraction of the expert and technical staff found in other regulatory agencies across the nation, with one technical support staff for all five commissioners, while most regulatory agencies offer at least one technical staff per commissioner. How are good decisions possible if there is just one expert advisor available to all five commissioners? Critics of the PRC have pointed to long delays in decisions. This is the more likely cause of those delays, not the commissioners being elected.
  • The fact that campaigns for PRC commissioner are publicly funded insulates them from influence from the utilities they are charged with regulating. [10.8.2020 Note: We realized that the NRRI had this a bit wrong in that public funding is an option, but not required.]

None of the NRRI recommendations were incorporated in the constitutional amendment or attempted legislatively. Instead, a constitutional amendment was developed that addressed none of the root causes of the concerns raised by PRC critics. Instead, Democratic leadership circled the wagons and concocted an intentionally misleading ballot initiative accompanied by a dark-money-funded media campaign that further misled voters.

As reflected in her op-ed former Commissioner Espinoza clearly felt the Amendment misled her and the voters:

Imagine, then, my surprise when I learned of a legal opinion prepared by an assistant attorney general for the nominating committee, dated Sept. 28, which concludes the appointed commissioners “serve at the pleasure of the governor, meaning they can be removed by the governor without specified cause.” The opinion further concludes that the governor, in removing an appointed commissioner, “need not make charges, give notice, or accord a hearing.”

New Mexico voters who passed the 2020 constitutional amendment surely did not anticipate that the appointed commissioners would ‘serve at the pleasure of the governor’ and be subject to removal without any specified cause. In fact, they were told explicitly that appointed commissioners could only be removed by being impeached…

The assistant attorney general’s legal conclusion that appointed commissioners “serve at the pleasure of the governor” turns the constitutional amendment on its head. Regardless of who serves as the governor of New Mexico, it is not a stretch to contemplate a governor removing an appointed commissioner if that commissioner does not do as the governor pleases. Even if that does not happen, the mere fact that an appointed commissioner could be fired by the governor for any reason likely would cause voters to question the impartiality of any vote by an appointed commissioner.

If appointed commissioners will be subject to being removed by the governor without cause, I regret having proposed to Senate Majority Leader Peter Wirth the constitutional amendment to make PRC members appointed. I made this recommendation after serving with commissioners who were constantly absent or partial to regulated utilities. Research shows commissioners who serve at the pleasure of governors are beholden to the governor who appoints them. It would be a disservice to New Mexicans if a commissioner is appointed and then removed because that commissioner makes a ruling that is at odds with the governor’s agenda.”PRC Appointees Should not Serve at Governor’s Pleasure,” by former PRC Commissioner Valerie Espinoza, in The Santa Fe New Mexican, Oct. 15, 2022.

So if a former PRC Commissioner is having second thoughts about what her “yes
vote on this amendment meant, how many tens of thousands of New Mexico voters were equally misled?

Well more evidence of likely voter confusion has surfaced with the confusion focused on whether Commissioners will serve at pleasure of Governor and/or can only be impeached by impeachable offenses and requiring affirmative vote by state House of Representatives?

As noted in Espinosa’s Op-Ed, the Attorney General’s office weighed in on the issue with the AG’s opinion triggering a response from Speaker Egolf.

In two pieces in the Santa Fe New Mexican (10/29/2022 & 10/31/2022), Speaker Egolf, noted that the Legislature intended for an “independent” Commission one where the Commissioners could only be impeached, not removed at will by a Governor. Egolf went on to note that  serving at the will of the Governor is “contrary to legislative intent”

The Governor, however, disagrees, noting in her Supreme Court brief that “impeachment . . . is an additional means of removing a Commissioner and is not a restriction on the Governor’s general power to remove a Commissioner” [pursuant to N.M. Const. art. V, § 5]”).

So we have an Attorney General and Governor who understand the Amendment one way and a House Speaker and former PRC commissioner who interpret the amendment very differently.)

But hold on, the plot thickens.

So confusing was the intent of the Amendment that the AG’s office offered a second opinion stating that: “the language [in the ballot question] makes reaching a definitive conclusion about the provision’s intended effect on the governor’s constitutional removal authority difficult.”

So essentially the AG says now, that the ballot question is difficult to understand or to interpret its intent! Lovely, if the AG doesn’t know how to interpret the ballot question how were voters to do so??!!!!!!!! That was the whole point of the ballot language and the media campaign supporting it: misleading the voters, so the Governor could achieve total control over the composition of the PRC. And the whole point of the lawsuit is to challenge the Amendment’s constitutionality: the ballot was misleading and unclear. So battle lines have been drawn.

The Supreme Court will decide what to do with this mess. If the Supreme Court grants the Petition and agrees with the people that the ballot question is unconstitutional then we will revert to the current system and Cynthia Hall would continue as Commissioner and the Governor would appoint remaining vacancies until the next election when the voters would decide.

Oral arguments to be offered at Monday’s Supreme Court hearing should be most interesting indeed.

Oral arguments will be heard on Monday, November 28th at 9am. We plan to be there and so does a contingency from Indivisible ABQ, If you can come in person to support this effort, , please arrive by 8:30am at the Supreme Court, 237 Don Gaspar Ave. (at corner of Alameda and Don Gaspar) in Santa Fe. To watch online click here. and look for livestream link at 9am. But we’d like at least a dozen Retake folks to attend in person to support this effort. The judges need to understand that the people are looking to them to ensure the independence of the PRC and to reinforce the legitimacy of the election process. The validity of election results depend upon voters being aware of what they are voting on. And in this instance, clearly that awareness was not possible… by design.

If you plan to attend in person, please write us at RetakeResponse@gmail.com, so we can give you a Retake button.

In solidarity & hope,

Paul & Roxanne

p.s. We would be remiss to not report on an NM In Depth event Roxanne and I plan to attend in person next week.

Ethics in the Roundhouse

Scandal has plagued New Mexico’s Legislature for decades. In recent years, a state senator has gone to prison and a state representative is under indictment on corruption charges. A sitting state senator is charged with sexual harassment while an internal legislative ethics committee is described by the Senate President Pro Tem as “broken”.

Meanwhile, proposals for reform that would bring greater accountability move at a snail’s pace.

Some say the Legislature is in desperate need of professionalization – paid lawmakers and staff who can reduce their reliance on lobbyists for information.

Others have high hopes the state’s new independent Ethics Commission will make a difference.

New Mexico In Depth invites you to join an afternoon conversation in Santa Fe with legislative leaders (below) and the Executive Director of the Ethics Commission in a discussion of how to make state government more ethical and accountable to New Mexicans.

When: Thursday, December 1, 1:00 – 4:00 PM

Where: Santa Fe Farmers’ Market Institute, 1607 Paseo De Peralta, Santa Fe, NM 87501

Don’t miss: A one-on-one conversation with Jeremy Farris, executive director of the New Mexico State Ethics Commission.

Also joining us: ~ State Rep. Joy Garratt
~ State Sen. Katy Duhigg
~ Mario Jimenez, Common Cause
~ Kathleen Sabo, New Mexico Ethics Watch
~ Judy Williams, League of Women Voters
~ Professor Timothy Krebs, UNM Political Science Department

More info?  See the agenda here. As you will see, the scope of the discussion will extend well beyond lengthening sessions, paying legislators and paying staff for legislators, but will also include discussion of what can be done to curb the influence of money and lobbyists at the Roundhouse.

This is a Free Event. Please reserve your spot today to help us plan for attendance.

What questions should we ask? Let us know here.

Categories: Local-State Government & Legislation

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5 replies

  1. Thank you for this article. In 2020 during the lead up to the election, I was well aware of this unconscionable amendment designed to eviscerate the PRC. Unfortunately. I think previous corruption and cronyism in the PRC was in part responsible for this MLG power grab to be successful…. I hope the Supreme Court can prevail!🙏🙏🕊🌏🌎🌍🌱

  2. This governor committed to a $1million Dark Money media campaign largely to protect her agreements with AVANGRID and PNM and big money, a year before hydrogen hubs were considered. She deliberately lied to the people about the PRC, the need to change the PRC, and how this would be implimented. And SHE took votes away from the people served by the PRC Commissioners. What democrat takes votes away from the citizens?: a governor who wants to continue to deceive the people and curry favor with Corporate Funders. And yet you demanded we give our votes in the election 3 weeks ago to this same Governor. Having walked through this saga with you and other organizations, I could not and will not support the dishonesty exhibited by this Governor. When Sierra Club and CVNM lie to us, we know they are also compromised. Its awful when there is a skunk in the barn. Even worse when it is our skunk. Its going to be a long 4 years, no matter how the NM Supreme Court rules.

    • I’m hoping you are not calling out Retake as a skunk among us for our endorsing MLG over Mark Ronchetti. That endorsement was more about our disinclination to be watching Ronchetti veto any and all progressive legislation, all while knowing MLG would have likely signed them all. That is a big difference. Readers of this blog are well aware of our frequently calling out our Governor ror h34 frequent policy gaffes. Often in scorching tones.

  3. https://dsc.duq.edu/cgi/viewcontent.cgi?article=3349&context=dlr

    “That is to say that if Roman law is isolated in its role, its impact becomes almost
    negligible in American legal practice. On the other hand, if its role is considered in the context of a more inclusive historical analysis that employed English, canon, and civil laws as well, then Roman law looms larger as a starting point for an explanatory chain
    leading from the past to the present.”

    And this is the reason why the Governor can take Absolute Powers. Because Roman Law, English Law, and all laws developed in Europe’s kingdoms, including Napoleon’s Code, were developed specifically to serve the needs of emperors, kings and queens as well as their Ruling Classes.
    I may be wrong but I believe that every ‘democracy’ in south and north america inherited those laws. Not just the USA.
    The context then, is that our Republic is not a democracy, but is there to serve the imperial needs of our Ruling Class.
    Because, we have one dollar one vote, not one person one vote.
    A republic in which just one family’s worth is equivalent to that of the bottom 30% of American families is not a democracy.
    “The top decile (90-100 in quartile chart), or top 10% of high net worth U.S. families, own 76% of the wealth, according to analysis done by the Federal Reserve Bank of St. Louis.” from: https://financebuzz.com/us-net-worth-statistics
    Actually there is much more information about the true nature of our (or theirs?) republic. And it all began in 1776.
    Looking at the statistics, and at the structure of our government’s laws, beginning with the constitution, leads to the conclusion that these ‘traits’ belong to an empire, not to a democracy.
    Here is another pixel to add to this picture.
    “According to 2010 figures from the Office of Management and Budget, we’re set to spend 20 percent of our federal budget on defense and a mere 3 percent on education.” from: https://www.forbes.com/sites/erikkain/2011/04/17/do-americans-care-more-about-war-than-education/?sh=1db3d1846aa1

    So, please, someone in Retake, tell me, what’s all the fuzz about our governor, a so called democrat, using ‘imperial powers’?


  4. Well, I learned today that our state Supreme Court ruled against the PRC 2020 legislation suit in favor of the governor appointing that commission. It seems our states highest court has something in common with the country’s highest court. Places where fairness and justice lose out to political and dark money considerations. It’s become obvious that the justice system is broken throughout the land. The efforts brought forth by a coalition of native organizations with amicus briefs from Retake, Indivisible ABQ and NEE were overruled by outsized influence from the governor, PNM and Avangrid. We can only hope that four more years of this governor doesn’t turn New Mexico red during her tenure and that state Democratic Party politics can move on to offer a better choice of representation in the future.

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