State supreme court sets date for arguments on pandemic aid case

The New Mexico Supreme Court will hear oral arguments in a case over who has the authority to distribute federal pandemic aid funds in November. The case, which will have oral arguments on Nov. 17, is brought by legislators who say the governor’s veto of language that directed the use of federal COVID-19 pandemic aid is illegal and that the Legislature should have the authority to direct where the money goes. 

Sen. Jacob Candelaria, a Democrat from Albuquerque, and Senate Minority Leader Greg Baca, a Republican from Belen, filed the petition in September. 

At the time, the two said the governor’s action was unconstitutional. The Lujan Grisham administration said that previous state supreme court precedent allowed the governor to direct federal funds. “The Supreme Court of New Mexico has concluded that federal contributions are not a proper subject of the Legislature’s appropriative power, and the Legislature’s attempt to control the use of such funds infringes ‘the executive function of administration,’” Lujan Grisham wrote in her veto message regarding the funds. 

When asked about the dispute when State Treasurer Tim Eichenberg, a Democrat, said he believed the money should be handled by the Legislature, a spokeswoman for the governor said she believed the Legislature had the authority to dispense state, not federal funds.

State treasurer says COVID-19 relief money should be governed by Legislature

The New Mexico state treasurer agrees that federal COVID-19 relief funds should be handled by the state Legislature and not the governor, according to a response filed on Tuesday by his attorney. 

Treasurer Tim Eichenberg was named as a party of interest in a case filed last month by state Sens. Jacob Candelaria, a Democrat, and Greg Baca, a Republican. Candelaria and Baca asked the New Mexico Supreme Court to order Gov. Michelle Lujan Grisham to stop appropriating any more money from the federal American Rescue Plan Act (ARPA) and to leave the rest of the spending decisions to the state Legislature. 

In a response on behalf of Eichenberg, his attorney wrote that while the ARPA funds can be spent legally on a variety of different issues, the Legislature should decide where it would be best spent. 

“The Treasurer respectfully submits that the question of whether some or all funds should be used for any or all of these areas requires considerations of public policy and public priorities that must be conducted in the open with opportunity for public participation, which can and will only happen in a legislative process,” the response reads. 

During the 2021 legislative session, lawmakers tried to include spending of the federal money in the state budget. Lujan Grisham line-item vetoed that appropriation on the grounds that a previous state supreme court case ruled that the spending of certain federal funds is the responsibility of the governor, not the legislature.  

In their initial petition to the state supreme court, Candelaria and Baca argued that the case Lujan Grisham cited in her veto message was narrowly focused on federal funds specifically designated for higher education. In this case, the two senators argued, the federal funds had a wide range of acceptable uses. 

Eichenberg’s lawyer also argued that Congress approved the relief money to be used in a wide variety of ways, “according to needs assessments made by state decision-makers, driven by state considerations, and priorities.”

And those decision-makers, Echineberg’s lawyer argued, are legislators. 

“Legislative action—the power to make law and appropriate money from the State Treasury—rests exclusively with the Legislature,” the response reads.

NM Supreme Court denies stay, asks for response in relief money case

The New Mexico Supreme Court denied a request by two state senators to stop Democratic Gov. Michelle Lujan Grisham from further spending federal COVID-19 relief funds. But the high court also gave the governor and the state treasurer until Oct. 15 to respond to the original petition. 

Sen. Jacob Candelaria, D-Albuquerque, and Senate Minority Leader Greg Baca, R-Belen, filed a petition last month asking the state supreme court to issue an order to stop Lujan Grisham from further appropriating money that New Mexico received as part of the federal American Rescue Plan Act (ARPA). The two senators also asked the court to issue a stay in order to stop any further spending until the court case is settled. 

State Republicans have largely been critical of Lujan Grisham’s handling of the COVID-19 pandemic and its aftermath. Candelaria, although a member of the same political party as Lujan Grisham has often criticized the governor as well as Democratic Senate leadership.

Two NM lawmakers ask state supreme court to give federal funding discretion to legislature

In a move, not likely surprising to political insiders, a Democratic New Mexico state senator who has been a vocal critic of the governor joined one of his Republican colleagues in an attempt to block further spending of federal relief money. 

Sen. Jacob Candelaria, D-Albuquerque, along with Senate Minority Leader Greg Baca, R-Belen, filed a petition over the weekend with the New Mexico Supreme Court in an attempt to stop Gov. Michelle Lujan Grisham from further spending federal money without legislative input. 

In a statement, Candelaria said no one person should have the authority to handle federal funds sent to New Mexico. 

“When I became a senator almost a decade ago, I took an oath to defend the Constitution and laws of the state of New Mexico. We have filed this petition to halt the Governor’s unconstitutional efforts to usurp the Legislature’s appropriations power by claiming that she, and she alone, has the power to decide how billions of dollars in federal grant funds are spent,” Candelaria said. “In our country, no one is above the law and no one person should ever have the power to decide, unilaterally, how much people are taxed or how public money is spent.”

At issue is $1.75 billion of federal funds New Mexico received as part of the federal American Rescue Plan Act (ARPA). Some state lawmakers have repeatedly called for legislative control of federal stimulus money and during the regular 2021 legislative session, lawmakers attempted to appropriate money from ARPA in the state budget. Lujan Grisham issued a partial veto of that budget bill and cited a 1974 New Mexico Supreme Court case in her explanation for not giving the Legislature oversight in ARPA funds.  

“The Supreme Court of New Mexico has concluded that federal contributions are not a proper subject of the Legislature’s appropriative power, and the Legislature’s attempt to control the use of such funds infringes ‘the executive function of administration,’” Lujan Grisham wrote in her veto message. 

Part of that case, which was filed by then-Republican state Sen. William Sago, also involved federal appropriations.

NM Senate leadership clears senator of ethics violation allegation

A dust-up between an outspoken New Mexico state senator and a state cabinet secretary over ethics related to cannabis legislation has come to a resolution, at least temporarily. 

According to a letter from Senate leadership last month, sent to New Mexico Department of Health Secretary Tracie Collins, there will be no legislative investigation of Sen. Jacob Candelaria, D-Albuquerque, over his professional involvement with a prominent medical cannabis business.  

In the letter, sent on May 19, Senate President Pro Tem Mimi Stewart, D-Albuquerque, wrote that she, Senate Majority Leader Peter Wirth of Santa Fe and Senate Minority Leader Greg Baca of Belen determined there was no reason for the Interim Legislative Ethics Committee to investigate the issue further. 

“I convened a meeting with Senators Wirth and Baca to review and deliberate the allegations and other information contained in your complaint and in the State Ethics Commission’s dismissal and referral,” Stewart wrote. “After our extensive evaluation, we have determined that the complaint and information did not warrant further investigation by the Interim Legislative Ethics Committee, and therefore the complaint is dismissed.”

Four days after this year’s regular session and six days before a special session, Collins filed an ethics complaint with the newly formed State Ethics Commission, alleging that Candelaria  violated the state Governmental Conduct Act by voting on a bill that would have limited medical cannabis patient reciprocity. Candelaria, who is also an attorney, represented medical cannabis producer Ultra Health months prior, challenging DOH over the same issue. 

In September 2020, the Medical Cannabis Program, which is overseen by DOH, issued a directive that medical cannabis reciprocity only applied to patients with authorization from their respective home state to use medical cannabis. The department was attempting to close what it saw as a loophole in which Texas residents reportedly received recommendations from doctors in California and then crossed state lines to buy medical cannabis in New Mexico. By October 2020, Candelaria, on behalf of Ultra Health, successfully petitioned a state judge to overrule the department’s emergency rule change.

Citizen lawmakers find work in new cannabis industry

Cannabis legalization in New Mexico was sold as, amongst other things, a job creator. Those who are eyeing the new industry are navigating proposed rules and regulations and making plans for real space, how many plants they will be able to grow and how to get their applications approved by the state. Now there seems to be a niche market for cannabis adjacent businesses, particularly those aimed at guiding business owners through the process. 

Even prior to the passage of the Cannabis Regulation Act in the New Mexico Legislature, a handful of consulting and legal firms specializing in cannabis regulations and law existed. But since the Cannabis Regulation Act passed, there are at least three elected officials who are currently, or plan to, sell their knowledge to those interested in getting in at the ground floor of what is expected to become a booming new industry. 

That raises questions about the ethics of state and local lawmakers selling their services in an industry they sometimes have a hand at creating. But some of those elected officials who operate cannabis adjacent businesses say they are keeping things ethical but that the dilemma could be avoided if lawmakers are paid an actual wage.    

On the evening of March 31, which was the last day of New Mexico’s special legislative session, the state Senate was deep in a debate over cannabis legalization.

Medical cannabis patient asks judge to rule on purchase limits

A New Mexico medical cannabis patient is challenging state rules for medical cannabis purchase limits. 

Jason Barker, a medical cannabis patient and advocate, filed a request in Santa Fe’s First Judicial District Court earlier this month, asking a judge to compel the state’s Medical Cannabis Program and Cannabis Control Division to allow medical cannabis patients to purchase the same amount of cannabis as commercial cannabis customers will be allowed to purchase early next year. 

Barker’s lawyer, Jacob Candelaria, is also a New Mexico state senator and has represented medical cannabis patients and producers in the past. One of Candelaria’s clients in the past has been medical cannabis producer Ultra Health, which has a history of filing lawsuits against the state over medical cannabis rules and regulations. Ultra Health’s president and CEO Duke Rodriguez told NM Political Report that the company has offered financial support for Barker’s case. 

“It’s an important patients’ rights issue in which we fully agree with Mr. Barker and his attorney, so we would be shirking our responsibility not to offer support,” Rodriguez said. “I am fully expecting we will not be the only licensed producer offering support on the matter.”

Candelaria said he could not discuss the issue of payment for his services, but stressed that his client in the matter is Barker and not Ultra Health. 

In a statement Candelaria accused the state of being more concerned with tax revenue than with medical cannabis patients’ well-being. 

“State regulators are trying to unlawfully discriminate against my client, and deny all medical cannabis patients the rights afforded to them under the Cannabis Regulation Act,” Candelaria said. “The law is clear, all medical cannabis patients may purchase at least two-ounces of medical cannabis at any one time, tax free, beginning on June 29, 2021.

NM Ethics Commission dismisses ethics complaint by DOH secretary against state senator

The New Mexico Ethics Commission effectively dismissed a complaint filed by a state cabinet secretary against a state senator. 

In a letter to New Mexico Department of Health Secretary Tracie Collins, the commission’s executive director Jeremy Farris wrote that the commission would not consider Collins’ complaint against Democratic Sen. Jacob Candelaria of Albuquerque as the issue is out of the purview of the Ethics Commission. According to Farris’ letter, Collins accused Candelaria of violating the state’s Governmental Conduct Act “by voting on a bill that clearly affected the outcome of a litigation matter concerning [Candelaria]’s client, and filed by [Candelaria].”

The bill in question was SB 340, a failed proposal in the regular legislative session that aimed to limit medical cannabis reciprocity. The client in question is medical cannabis producer Ultra Health, which has taken the department to court numerous times and is currently suing the state over medical cannabis plant limits. The latest suit from Ultra Health also accuses the department’s former secretary of discriminating against the medical cannabis producer. 

But the litigation Collins mentioned in her complaint against Candelaria is a suit from Ultra Health that alleged the Department of Health erroneously implemented an emergency rule to limit medical cannabis reciprocity. In 2019, the Legislature passed a law that allowed registered medical cannabis patients from other states to purchase, use and possess medical cannabis in New Mexico.

More contentious debates over cannabis legalization expected during the special session

The New Mexico Legislature is slated to start a special session Tuesday to address economic development and full cannabis legalization. But there is still a question of how much support cannabis legalization will garner from both Republicans and Democrats. 

About an hour after the regular 2021 legislative session ended, Gov. Michelle Lujan Grisham, flanked by Democratic legislative leaders in a news conference, announced that she would call legislators back for a special session to pick up where they left off with recreational-use cannabis legalization. The session started out with five legalization bills, but by the last week there was only one proposal: HB 12. Sponsored by Democratic Reps. Javier Martínez of Albuquerque and Andrea Romero of Santa Fe, HB 12 quickly became the favored bill for many Democrats, but hit a rough patch as it passed the Senate Judiciary Committee.

2021 legislative session historic for LGBTQ causes

With six openly queer legislators participating in the 2021 New Mexico legislative session, many in the LGBTQ community said this past session was important in the advancement of equal rights. But also, legislation that would repeal the state’s ban on abortion, remove qualified immunity as a legal defense and enable individuals whose civil rights have been violated to seek financial remedy through the courts and require employers to provide paid sick leave to employees are major highlights for the LGBTQ community as well as the reproductive justice community because the two intersect. The New Mexico Civil Rights Act, which made the changes on qualified immunity, and the Healthy Workplaces Act, which imposes the paid sick leave requirement, passed both chambers but await Gov. Michelle Lujan Grisham’s signature. Lujan Grisham has already signed the Respect New Mexico Women and Families Act, on abortion, into law after it passed both chambers in February. Related: Governor signs bill repealing abortion ban into law: ‘a woman has the right to make decisions about her own body’

But there were other moments, such as an informal “gay pride night” in the state Senate, when two bills sponsored by openly queer Senators passed in mid-March, that were noted by members of the LGBTQ community.