Democratic state lawmakers resisted calls from their Republican counterparts Wednesday to pursue legal action against Gov. Michelle Lujan Grisham over her emergency COVID-19 spending, instead saying attorneys should continue collecting data and the matter should ultimately be resolved through legislation.
After hearing from outside lawyers who criticized aspects of the state’s emergency spending, Republican legislative leaders urged their colleagues to take the administration to court, arguing Lujan Grisham had overstepped her power and usurped the authority of the Legislature.
But Democrats countered that the governor’s executive orders at the outset of the pandemic were justified in order to protect New Mexicans and argued against legal action. They said attorneys should continue to collect information and legislators should rework state law in the next legislative session.
“I do not see court as an appropriate alternative,” said Rep. Daymon Ely, D-Albuquerque.
The meeting was the latest development in an ongoing debate between New Mexico’s legislative and executive branches over the balance of state power during the era of COVID-19. It was also a relatively rare display of partisan fireworks within the Legislative Council, which tends to focus on logistical issues.
The committee, which includes Democratic and Republican legislative leaders, voted early last month to ask outside attorneys to investigate whether Lujan Grisham should have asked for authorization from the Legislature for $30 million in emergency spending in March and April.
Later in July, lawmakers asked the governor to explain the legality of her spending, and she responded in a strongly worded letter last week that called the issue a “pedantic matter.”
The outside lawyers tapped for the probe updated lawmakers on their findings at the Wednesday meeting, with Santa Fe attorney Thomas Hnasko taking issue with the governor’s reply to legislators.
“The governor’s response, we believe, is incorrect,” said Hnasko, a lawyer at Hinkle Shanor LLP. “We don’t believe that this is a trivial matter, and we certainly don’t believe it’s a pedantic exercise to fulfill our constitutional responsibilities of not only oversight but appropriation.”
Hnasko added that it was unclear how much money officials have spent based on the emergency orders, which accounts the funds came from and whether officials got competitive prices for what they bought.
“We don’t know what has been spent because there has been no transparency,” Hnasko said.
Michael Browde, an emeritus professor of law at the University of New Mexico who is also part of the probe, said litigation “may be premature” because a court would likely refuse to take up the matter.
Instead, both attorneys recommended they continue to gather information as part of a “data collection mission.”
The Governor’s Office said after the meeting Wednesday that Lujan Grisham stood by the comments she had previously made to legislators.
“State statute is very clear that not only is the governor empowered to make critical decisions in an emergency to protect New Mexicans, she is obligated to, and her actions to slow the spread of COVID-19 have saved lives,” said spokeswoman Nora Meyers Sackett.
Despite the recommendations by attorneys not to pursue legal action, Republicans pressed their colleagues to do just that during the meeting.
“I am a little confused as to why we would wait,” said Rep. Rod Montoya, R-Farmington. “Researching this more doesn’t make sense to me since it’s such a clear violation.”
They also criticized the governor’s recent response to lawmakers’ concerns.
“I think the letter back from the governor was snarly at best and chided the powers of both of the houses. And I don’t appreciate it,” said Minority Leader Jim Townsend, R-Artesia. “I don’t believe it was in the right tenor or in the right context for these times.”
House Speaker Brian Egolf pushed back, arguing the governor took necessary actions to ensure the state could respond to the pandemic amid an absence of coordinated federal leadership.
He accused Republican lawmakers of being politically motivated in their pursuit of legal action, noting that the November election is less than three months away.
“I am very concerned that this is taking on a partisan, political tinge,” said Egolf, D-Santa Fe. “Based on some of the comments that we’ve heard from members from the other side of the aisle, I think it’s clear that this effort — this endeavor — is being pursued for a partisan, political purpose.”
Meanwhile, Senate Majority Leader Peter Wirth said legal action wouldn’t solve the fundamental issue and instead urged legislators and the executive branch to rework state law during next year’s legislative session.
“Let’s focus on fixing the statute to address the situation we’re in,” said Wirth, D-Santa Fe.
At issue is a statute allowing appropriations of $750,000 “for each eligible and qualified applicant” when the governor declares an emergency.
Republicans have argued the governor broke that rule by authorizing appropriations above that amount, with some fiscally conservative Democrats expressing similar concerns.
The governor has said it would create an “absurd requirement” to read state law in such a way that called for dozens of executive orders for $750,000 each rather than issuing one order, for instance, for $20 million.
Wirth said that statute needed to be changed.
“What we’re facing is a $750,000 threshold that simply is never going to work in a pandemic of this magnitude,” he said.
Debbie Romero, acting secretary of the Department of Finance and Administration, has said the state intends to pay back the amounts spent through the emergency orders with newly arrived federal aid.
No official motions were made during the meeting Wednesday to pursue legal action.
Sen. Stuart Ingle, R-Portales, did make a motion during the meeting that would have imposed a two-week deadline for the attorneys to gather additional information on the matter. But that motion failed.
Instead, the attorneys and legislative staff said they would have all the information collected before the committee’s next meeting. A date for that meeting has not yet been set.
“That can be completed by the next meeting,” said Raúl Burciaga, director of the Legislative Council Service.