New Energy Economy, Inc. v. Martinez

247 P.3d 286 (N.M. 2011)


The EIB adopted a regulation pursuant to the Environmental Improvement Act and the Air Quality Control Act, to be codified as Regulation 20.2.100 NMAC. The Regulation 20.2.100 was transmitted to the Records Center for filing and publication pursuant to Section 14-4-3 of the State Rules Act. The Records Center scheduled the regulation for publication in the January 14, 2011 edition of the New Mexico Register. The WQCC, pursuant to its authority under the Water Quality Act, adopted a new set of regulations for discharges from dairy facilities, to be codified as Regulation 20.6.6 NMAC. On December 21, 2010, it was transmitted the regulations for filing to the Records Center; and the Records Center accepted the regulations for filing on December 23, 2010, at 10:07 a.m. These regulations were also scheduled to be published in the January 14, 2011 edition of the New Mexico Register. On January 1, 2011, the Governor Susana Martinez (D) issued Executive Order 2011-001, which formed a small business-friendly task force and suspended all proposed and pending rules and regulations under the Governor's authority for a ninety-day review period. On January 4, 2011, Martinez, the director of the Administrative Law Division (ALD) of the Records Center, sent an e-mail to D drawing attention to a number of rules and regulations that were filed and scheduled for publication in the January 14, 2011 edition of the New Mexico Register. D told Martinez to obey the freeze. D also sent high priority e-mails to the contact persons for various administrative agencies and departments requesting that they send written notification to P to suspend publication of the regulations listed. Acting Cabinet Secretary of the New Mexico Environment Department Raj Solomon e-mailed Martinez, requesting suspension of the publication of the two environmental regulations at issue in this case. Ps as proponents of the adoption of Regulations 20.6.6 and 20.2.100, each filed a petition for writ of mandamus under Rule 12-504 NMRA against Ds. Ps sought an order compelling the State Records Administrator to reinstate the filing of Regulations 20.6.6 and 20.2.100 and to then publish them. Ps allege that Governor Martinez and Secretary-designate exceeded the limits of their constitutional authority in violation of the separation of powers doctrine and that the State Records Administrator had a non-discretionary ministerial duty to publish the regulations.