Wednesday, June 15, 2011

Roundhouse Roundup: Will an Old Blue Law Help Susana Win Court Battles?

A version of this was published in The Santa Fe New Mexican
June 16, 2011

Whichever side eventually wins the lawsuits legislators filed last month over certain line-item vetoes by Gov. Susana Martinez should celebrate with drinks — on the following Sunday.

In responses filed this week to both lawsuits, Martinez’s lawyers cite a 1957 Supreme Court decision that upheld line-item vetoes by Gov. John E. Miles in 1939 — pen strokes that kept in place a prohibition against Sunday liquor sales.

In one of the recently filed legal challenges, four Democratic lawmakers sued the Republican governor for reducing a $150,000 appropriation for the state Mortgage Finance Authority to $50,000 by simply striking the numeral “1.”

In the other suit, six Democratic legislators challenged Martinez’s decision to veto a business tax contained in a House bill that would have generated $128 million to shore up the state’s unemployment fund. In that bill, Martinez let stand an $80 million reduction in unemployment benefits. The plaintiffs say she had no right to use a line-item veto on this bill because it was not an “appropriation” bill.

In their legal responses, Martinez’s attorneys cite a decision in a case called Dickson v. Saiz. I’d never heard of it before, but apparently lawyers here and even in other states have used it in cases involving a governor’s power of partial, or “line-item,” veto.

Caesar and God: On one side was Jake Saiz, doing business as Jake’s Market in Riverside, N.M. On the other was Hilton Dickson, chief of the state Liquor Control Division.

The state had revoked Jake’s Market’s liquor license for selling booze on Sunday. Saiz took the matter to court, where a district judge agreed with his argument that the Sunday liquor ban was unconstitutional because of the way Gov. Miles had line-item vetoed a liquor-control bill back in March 1939. The trial court reversed the revocation, saying the governor had nullified the entire Liquor Control Act because of the way he partially vetoed the bill.

Back in 1939, Miles had liked most of what was in the bill. But he didn’t like a provision that would have let individual counties permit Sunday liquor sales as long as county voters approved.

In his veto message, the governor referred to “those provisions which would permit the sale of intoxicating liquors on the Sabbath Day during hours of worship and during periods which the people of the State of New Mexico are recreation bound, during which hours the sale of liquor would be detrimental to the welfare of the people of the State of New Mexico.”

Vetoing those parts of the bill, he wrote, would fulfill “my duty to give unto Caesar that which is Caesar’s and unto God that which is God’s.”

Fast-forward to 1957, when the state Supreme Court apparently agreed that Miles had such authority. The high court said New Mexico has “perhaps, one of the most liberal provisions touching a partial veto of any state in the union.”

The justices also declared, “Our Constitution does not, necessarily, foreclose the exercise by one department of the state of powers of another but contemplates in unmistakable language that there are certain instances where the overlapping of power exists. Indeed, when the Governor exercises his right of partial veto he is exercising a quasi-legislative function.”

Thus, Jake’s Market lost its liquor license. And, 54 years later, Gov. Martinez hopes the Dickson v. Saiz decision will help make her vetoes stick.

Whiskey on a Sunday: In the early 1970s, the New Mexico Legislature made it legal to drink in bars and restaurants on Sundays, though package liquor sales still were forbidden on the Sabbath. That didn’t change until 1995 when Gov. Gary Johnson signed a bill legalizing package sales.