Despite the New Mexico Supreme Court ordering a freeze on over $1 billion in federal pandemic aid until the Legislature has a say in how the money is spent, the administration of Gov. Michelle Lujan Grisham tapped the funds to make two payments totaling about $283,000.

Attorneys involved in the legal and political battle are alleging a violation of the justices’ order, and a motion was filed Thursday to require the governor and Finance and Administration Secretary Debbie Romero to explain why they shouldn’t be held in contempt.

“The Supreme Court’s order entered on Nov. 18 … made perfectly clear that the governor and no one under her control … ‘shall not transfer, encumber, commit, expend or appropriate any additional funds’ out of the [American Rescue Plan Act] account in the state treasury, absent legislative appropriation,” said Sen. Jacob Candelaria, D-Albuquerque.

“The Legislature did not appropriate the fund transfer … so this to me is a pretty serious, clear and glaring violation of the Supreme Court’s order and makes clear that despite the Supreme Court’s order, this administration chose to spend … out of this fund illegally and in direct violation of the court’s order,” he added.

Candelaria, an attorney, teamed up with a Republican senator who is also a lawyer, Greg Baca of Belen, to take the governor to court to settle a dispute over which branch of government, the executive or the legislative, had the authority to appropriate federal funds.

Last month, the court sided with the two legislators, who argued the governor had violated the state constitution by appropriating $600 million of the $1.73 billion the state received in federal pandemic aid without legislative approval.

The motion filed Thursday states Department of Finance and Administration employees approved a $269,059 invoice from Carahsoft Technology Corp. in Virginia on Nov. 29 and an additional $14,178 for “DFA Payroll” on Wednesday.

“This is possibly a sanctionable offense,” Baca tweeted about the administration’s spending.

The payments were discovered by the office of State Treasurer Tim Eichenberg, whose attorney also had opined that only the Legislature has appropriation authority under the state constitution.

“This appears to violate the New Mexico Supreme Court’s Order and Writ,” Linda Bennett, Eichenberg’s attorney, wrote Tuesday in an email to Holly Agajanian, the governor’s chief general counsel, after being notified of the first payment.

“By 3:00 tomorrow, I expect the money to be returned to the account or to receive an explanation as to why this is not a violation of the Supreme Court’s clear and unambiguous Order and Writ,” Bennett wrote.

In response, Agajanian wrote Wednesday “the money at issue had been obligated for administrative expenses” before the state’s high court issued its order.

“However, [the Department of Finance and Administration] was able to stop the withdrawal with the exception of some payroll money that had already been removed,” she wrote.

Candelaria, a critic of the governor’s, called the spending “a level of blatant contempt” for the court’s order.

“This administration governs in many ways like the prior administration,” he said, referring to former Republican Gov. Susana Martinez. “They want their way. There is no room for debate or discussion, and they will engage in whatever scare, bully and intimidation tactics possible to just get their way.”



The governor’s press secretary, Nora Meyers Sackett, reiterated the money “was for services rendered and was obligated before the Supreme Court issued its stay.”

She wrote in an email, “DFA informed the state treasurer yesterday that it would immediately redeposit the funds, which it has done.”

Sackett added, “We will not be responding to the senator’s gratuitous invective.”

Bennett, the state treasurer’s attorney, called the administration’s actions “shocking.”

“The Supreme Court didn’t issue a stay,” she said, refuting Sackett. “The Supreme Court issued an order and a writ, and the Supreme Court’s order and writ are immediately effective.”

“When I have a client and there’s a Supreme Court order and a writ that says don’t do something, my client is instructed to not do that thing,” Bennett added. “We’re not playing games here, guys. This is constitutional stuff. This is high level.”

House Republican Minority Leader Jim Townsend of Artesia charged in a statement it was no surprise Lujan Grisham would “ignore” the Supreme Court’s decision.

“It’s similar to a child who doesn’t get their way,” he said. “This administration, as directed by her, has unilaterally grabbed power and ignored the Constitution, apparently caring little about the rule of law.”

The Republican Party of New Mexico also chimed in with a news release, calling the administration’s spending of federal funds after the high court’s order “contemptible and shameful.”

“This is another example of the Governor acting like a dictator and ignoring the other equal branches of government,” GOP Chairman Steve Pearce said in a statement.

The federal funding is likely to be a hot topic of discussion and debate during the special legislative session on redistricting that begins Monday.

The governor announced Thursday the appropriation of “outstanding” American Rescue Plan Act funds will also be on the agenda.

“My administration’s working relationship with the Legislature has been incredibly productive, for the benefit of New Mexicans, for several years now,” Lujan Grisham said in a statement. “I am sure that lawmakers will meet this moment and deliver this massively important federal funding to New Mexicans in a strategic and meaningful way.”

Candelaria called the governor’s characterization of her relationship with lawmakers as “incredibly productive” a “fantasy.”

“The reality is quite different,” he said. “Sure, she has some sycophantic allies in the Legislature who will just sort of beat the party tambourine. But those aren’t leaders. Those are followers.”

Follow Daniel J. Chacón on Twitter @danieljchacon.

(21) comments

paul pacheco

Someone with balls over there at the legislature must step up and stop the madness.! Where's all the lawyers? Moe are you there? Continued corruption in state government in an uneducated and liberal society is the only thing transparent!

John Cook

'...an uneducated and liberal society...' In your sad right-wing dreams. cf. Donald Trump: 'I love the uneducated.'

Richard Reinders

What does Trump have to do with it ? , the left can't use him as their excuse for ever. He is not the President and hasn't been for 11 months. Biden is our president now.

John Cook

And the uneducated continue to be the mainstay of what is totally and absolutely the Trump party.

Khal Spencer

You will make any excuse to support corruption. Is John Cook a pseudonym for one of the Governor's PR flacks?

Mike Johnson

Yes, real name Nora or Tripp......

Joseph Tafoya

If there needs to be further proof that New Mexico has transitioned into a third-world type government, her “ Magnificent MLG” is proving it. There are no checks no balances, it's all about power.

Cheryl Meyer

[thumbup] Unbelievable!

Mike Johnson

[thumbup][thumbup][thumbup]

Michael Kiley

Correction 5,000+ deaths.

Michael Kiley

The Court did not enjoin ongoing emergency spending, it issued a show cause order to explain ongoing spending. No one is turning off the hydrant on our multi-variant public health 3,000+ death fire. Only ignorance and partisan denial would suggest it.

Richard Irell

Is MLG trying to turn NM red?

Richard Reinders

She just came back from DC, that must have given her the cajones to make a move like this.

Marsden DeLapp

Apparently the law does not apply to government leaders.

Khal Spencer

Can the governor be jailed for contempt of court?

Mike Johnson

"Rule 8-110 - Criminal contempt, N.M. R. Mun. Ct. P. 8-110 (“New Mexico law classifies contempts of court as either civil or criminal. See Concha v. Sanchez, 2011-NMSC-031, ¶ 24, 150 N.M. 268, 258 P.3d 1060. The classification of a contempt as civil or criminal does not depend on whether the contempt proceeding arises out of an underlying criminal action or civil action. Instead, the focus should be on the reason why the court is invoking its contempt powers. See id. Civil contempt sanctions are remedial and may be imposed as coercive measures to compel a person to comply with an order of the court or to enforce the rights of a private party to a lawsuit. See id. ¶ 25; State ex rel. Bliss v. Greenwood, 1957-NMSC-071, ¶ 6, 63 N.M. 156, 315 P.2d 223. A person held in civil contempt "carries the keys to his prison" and can end continuing contempt sanctions by complying with the court's orders. Concha, 2011-NMSC-031, ¶ 25 (internal quotation marks and citation omitted). Criminal contempt sanctions are imposed to punish the contempt defendant for a completed act of contempt and to preserve the dignity and authority of the court. See Concha, 2011-NMSC-031, ¶ 26; Greenwood, 1957-NMSC-071, ¶ 6.”)

Whether a contempt proceeding is classified as criminal or civil will impact the procedures the court must follow. Because civil contempt sanctions are remedial and not intended to punish, the court may impose civil contempt sanctions "by honoring the most basic due process protections-in most cases, fair notice and an opportunity to be heard." Concha, 2011-NMSC-031, ¶ 25. Criminal contempt, on the other hand, is a "crime in the ordinary sense; it is a violation of the law." Id. ¶ 26. "A criminal contempt defendant is therefore entitled to due process protections of the criminal law, the specific nature of which will depend on whether the criminal contempt is categorized as direct or indirect." Id. A contempt proceeding can result in both civil and criminal contempt sanctions, see State v. Pothier, 1986-NMSC-039, ¶¶ 4-6, 104 N.M. 363, 721 P.2d 1294 (recognizing that both civil and criminal sanctions can be imposed for contemptuous conduct), and this rule sets forth the procedures the court must follow if the court intends to pursue criminal contempt sanctions even if the court is also considering civil contempt sanctions."

Mike Johnson

"If incarcerated, the contempt defendant is entitled to bail as provided by Rule 8-401 NMRA. The defendant has a right to assistance of counsel. And, if the defendant is indigent and the court contemplates the imposition of any sentence of imprisonment, the defendant is entitled to representation by an attorney at the state's expense. See NMSA 1978, § 31-15-10(C) ("The district public defender shall represent every person without counsel who is financially unable to obtain counsel and who is charged in any court within the district with any crime that carries a possible sentence of imprisonment.").

John Cook

Whew. You two fellas have plumb fallen off the edge this time. The short and accurate answer to your question, Khal, is 'no'.

Khal Spencer

Thank you, Mr. Apologist for MLG!

Mike Johnson

This is one of those comical NM political moments, when you wonder "how can anyone be that stupid?". Well, MLG is not stupid, but it is apparent that her strategy all along has been to ignore the Supremes and just keep spending the money illegally until someone noticed. She should be indicted for this. It is obvious she has no intention of following the Supreme Court's orders, that cannot be allowed to stand.

Chris Mechels

Perhaps sheer incompetence on the part of the Governor, who seems clueless about management. Of course malice is also possible, as she is malicious. Confusing... In any event, this malicious incompetent should NOT be reelected.

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