Minutes ago, Trip Jennings at the New Mexico Independent reported that New Mexico legislators, fed up with the Governor's line-item vetoes, are contemplating a lawsuit in order to, as Sen. John Arthur Smith, D-Hidalgo, told SFR yesterday, "draw a line in the sand and let the executive know [he's] not supposed to cross over that line."

The problem, Smith explains, is that Governor Richardson may be using his line-item veto power in questionable ways—like indirectly altering where state money goes. If true, such a practice is tantamount to challenging the legislature's constitutional authority to appropriate funds.

That's not new, Smith says. "With this Governor, it seems like it's a continuous effort," he says. "He's interpreting regulation, I believe, without the reinforcement of law behind him. This Governor is pretty bold."

The question, according to Legislative Finance Committee chair Rep. Luciano "Lucky" Varela, D-Santa Fe, is this: "Can the Governor change legislative intent? He's vetoing certain words to change the definition that's put in there by the legislature. By changing intent, he's reappropriating that money."

Smith's and Varela's concerns center around special session legislation on Medicaid DDs—developmental disabilities—and on education issues.



"It happened in education, in terms of the $3 million we had there for small school districts—rural school districts, and he changed that from rural to all school districts by vetoing ‘rural,'" Varela says. Smith says the motivation behind such a move is political.

"I personally believe the Governor's been in denial on how extreme our financial situation really is,  so his solution is short-term for a couple of reasons," Smith says. "One, he's an eternal optimist and hopes it's going to get better. Two, he's not going to be here to wrestle with the problem in the future."

According to Varela, these questions of constitutionality are currently under review by a team of constitutional lawyers (he wouldn't say who, and SFR was unable to reach Senate Judiciary chair Cisco McSorley, D-Bernalillo, yesterday). Varela notes that any veto can be overridden by a two-thirds majority in the legislature—but Smith is skeptical.

"I strongly suspect it won't be overridden in the House," Smith says. "If there's a snowball's chance of getting something overridden, it's going to have to be a Senate bill." The House of Representatives, Smith says, "has been very receptive to sheltering the Governor and reluctant in the past to challenge [him].

On whether a lawsuit is likely, both Smith and Varela demurred.

"If a lawsuit is filed, it's just letting the executive branch [know] that we think he overstepped and he's going to be challenged," Smith says. "I don't think that decision has been made."

Varela concurs. "We don't know whether those questions will be addressed through a lawsuit or a[n] override," he says. "That's what the majority of the legislature's looking at: Let's see, as we get closer to the session, what our options are in terms of being successful."