Alec Baldwin's manslaughter prosecution and separation of powers under the New Mexico Constitution
The special prosecutor brought in to handle Baldwin's prosecution for involuntary manslaughter may have been unconstitutionally appointed
[Note at the outset: Compared to my previous posts, this one is a bit longer and features a bit more thinking out loud, as it were.]
On October 21, 2021, on the set of the upcoming film Rust, Alec Baldwin was handed a gun that was ostensibly loaded with blanks. He fired it—and as it turns out, it contained a live round of ammunition, resulting in the shooting of cinematographer Halyna Hutchins, who later died from her injuries. On January 31, 2023, Baldwin was charged with involuntary manslaughter.1 Whether Baldwin’s actions constituted criminal negligence—the standard for an involuntary-manslaughter conviction under New Mexico law—or not is the matter of some debate, and may ultimately be a question for a jury if the case goes to trial.
But one of the more immediate questions is whether the special prosecutor leading the case against Baldwin was constitutionally appointed. Baldwin argues that she wasn’t—and recently filed a motion to disqualify her from the case. The crux of Baldwin’s argument is that State Representative Andrea Reeb, who was appointed by District Attorney Mary Carmack-Altwies as a special assistant district attorney, is prohibited from serving as a prosecutor because she is currently a member of the state legislature, and that her appointment violates the separation-of-powers requirement under the New Mexico Constitution.
The creation of the executive, judicial, and legislative branches in the U.S. Constitution has led to the well-established conclusion that the Constitution implicitly imposes a separation-of-powers requirement. But most state constitutions, including the New Mexico Constitution, impose explicit separation-of-powers requirements.
Article III, Section 1, of the New Mexico Constitution provides that
The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others[.]
Baldwin’s argument here is that the power that Reeb is exercising as a special prosecutor, whether it’s properly characterized as “executive” or “judicial,” is incompatible with her service as a state legislator. Some sensationalist, tabloid media outlets—I’m talking mostly about the Daily Mail—have modified Baldwin’s claim as an argument that Reeb can’t prosecute him because she’s “a Republican lawmaker,” but that is (a) bullshit and (b) not what he’s arguing.
The core of Baldwin’s argument is that allowing Reeb to simultaneously serve as a legislator and special prosecutor causes irreconcilable conflicts that imperil the integrity of the prosecution. On one hand, her service could both “taint prosecutorial decision-making” by creating perverse incentives for legislator-prosecutors “to make prosecutorial decisions that serve [their] legislative interests.” It could also allow a legislator-prosecutor to use their “influence on [their] colleagues in the Legislature” to further the prosecution. For example,
A prosecutor who also serves as a legislator could face pressure to make prosecutorial decisions that serve her legislative interests, such as by prosecuting a prominent defendant associated with an opposing faction within the Legislature even in the face of conflicting evidence or law.
Regardless of whether a court agrees, I think that Baldwin’s argument is compelling, and that the separation-of-powers concerns here are extremely problematic. A legislator serving as an assistant district attorney, or as an assistant public defender, is one thing—part-time legislators need other jobs, and in both positions, they’d be accountable to their bosses, who have independent statutory or constitutional authority. But in New Mexico, a special prosecutor isn’t a mere line prosecutor. The New Mexico Supreme Court has held that a “properly appointed special prosecutor is given all the authority and duties of the appointing district attorney to prosecute the case[.]” In other words, the special prosecutor stands in the place of the elected district attorney. That’s a different kind of conflict altogether.
There might be another reason that Reeb’s appointment is unconstitutional—it might violate the New Mexico Constitution’s ban on dual officeholding.
Dual officeholding prohibitions originated centuries ago in English common law, but took hold in the American legal system as a matter of common practice and as the result of strict prohibitions adopted in the federal constitution and state constitutions. At their core is a simple idea—that the same person cannot hold two “incompatible” public offices at the same time.
The Ineligibility Clause of the U.S. Constitution, for example, makes members of Congress ineligible for certain positions—namely, those that were “created” or that had their “Emoluments . . . increased” during their time in office. It also prevents anyone “holding any Office under the United States” from simultaneously serving in Congress. Ineligibility Clause problems arise somewhat commonly in the emoluments context when members of Congress are appointed to executive branch positions. When a conflict emerges, Congress will usually reduce the office’s salary, reversing whatever salary increase had taken place during the member’s service, so that the member can lawfully serve. This informal workaround is known as a Saxbe fix (which some have argued still violates the constitution), so named for William Saxbe, Richard Nixon’s post-Saturday Night Massacre Attorney General.
Most states have prohibitions similar to the federal Ineligibility Clause. And while the exact contours of the dual officeholding prohibitions has varied from state to state, most apply vertically (to federal offices) and horizontally (to other state offices). Depending on the specific prohibition, state courts have had to determine what a “public office” is and when two such offices are “incompatible.” Some courts have approached this question by asking whether the second office exercises “sovereign power.” As the Florida Supreme Court explained over a century ago, “The term ‘office’ implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office, while an ‘employment’ does not comprehend a delegation of any part of the sovereign authority.”
But regardless of the state, interpreting these provisions has long been a complete mess. In attempting to articulate something resembling a sensical doctrine, courts have, all too often, arrived at perplexing results. The strict application of dual officeholding prohibitions led to strange, but perhaps intended, results: state legislators were barred from serving in the U.S. military, as a postmaster, or even as a notary public. One commentator summarizing Oregon’s caselaw in 1948 illustrated the absurdities by noting that “[t]he supreme court of Oregon has held that a captain of a county-operated ferryboat was a public officer, while in another case it held that a member of the State Board of Higher Education was not a public officer.”2
Some states have responded to the absurdities of the doctrine by loosening their own restrictions. A handful have ratified constitutional amendments explicitly allowing their state legislators to also serve as notaries public or in their state’s national guard, and allowing judges to hold part-time teaching positions. Others have left their text largely unchanged, but courts have relaxed their overly strict interpretations.
And regardless of the exact prohibition in a state’s dual officeholding provision, a state constitution’s separation-of-powers requirement might nonetheless bar a legislator from assuming another role in state government—even an unpaid one, and even one that existed before their tenure—depending on its policymaking responsibilities. In Gibson v. Kay, for example, the Oregon Supreme Court held that a legislator’s service as an attorney for the state corporation commission violated the state constitution’s prohibition against a state legislator simultaneously holding a “lucrative office,” but also violated the state constitution’s requirement of separated powers. “[T]he functions of the corporation commissioner and his assistants, including stenographers and clerks, pertain to the administrative department of the government in which a member of the legislative department is forbidden to participate.”
That brings us, then, to Alec Baldwin. The special prosecutor appointed to work on Baldwin’s case is State Representative Andrea Reeb, and the crux of Baldwin’s argument is that her appointment violates the state constitution’s separation-of-powers requirement. But does it also violate the state constitution’s dual officeholding ban?
Article IV, Section 28, of the New Mexico Constitution provides that
No member of the legislature shall, during the term for which he was elected, be appointed to any civil office in the state, nor shall he within one year thereafter be appointed to any civil office created, or the emoluments of which were increased during such term[.]
In other states, supreme courts have interpreted their state constitution’s specific prohibition on dual officeholding, creating a body of caselaw that informs how we would approach a question like this today. Unfortunately, courts in New Mexico haven’t decided many cases that have implicated Section 28—and so there isn’t much to go on.
In State ex rel. Gibson v. Fernandez, the New Mexico Supreme Court had an opportunity to decide a strikingly similar case. In Gibson, State Representative A. M. Fernandez was appointed a special tax attorney for the state tax commission. Gibson launched a quo warranto proceeding3 against Fernandez, seeking to remove him from his position as special tax attorney. The New Mexico Supreme Court ultimately denied the writ (because quo warranto was “not the proper proceeding” for that context) but, helpfully, it did lay out the relevant test.
Had the Gibson court actually answered the underlying question—which concerned whether the specific provision to which Fernandez had been appointed was a “civil office” under Section 28—it would have informed whether Reeb’s appointment here is unconstitutional. To some extent, the court suggested how it might determine whether there’s an unconstitutional conflict. It favorably cited several decisions from the Montana Supreme Court, which identified five elements of an incompatible “public office”:
creation by the state constitution, legislature, or local body given sovereign power by the legislature;
the office must have been delegated sovereign power;
the powers exercised by the office must be defined by the legislature;
the office is either an independent office without a superior or an inferior office placed by the legislature under the control of a superior (the Gibson court openly acknowledged that “[t]he meaning of this [element] is not clear”); and
it must be a permanent and continuous office, not “temporary or occasional”
If these five elements are the test, then Reeb’s appointment here is likely permissible. The first four elements are likely satisfied, but the fifth probably isn’t. Section 36-1-23.1 of New Mexico Statutes makes clear that special prosecutors “have authority to act only in the specific case or matter for which the appointment was made.” Though, as mentioned earlier, the New Mexico Supreme Court has explained that a special prosecutor essentially stands in the place of the elected district attorney, the fact that a special prosecutor’s authority is so limited likely precludes a determination that their office is permanent and continuous. A limited search of caselaw from other states suggests that, if this fifth element is required, Reeb’s appointment is constitutional; for example, the Arkansas Supreme Court held that a legislator couldn’t serve as a deputy prosecuting attorney, but could serve as a special prosecuting attorney.
On the other hand, the Gibson court didn’t adopt a test and didn’t reach a decision on the merits, and state courts in New Mexico haven’t frequently been presented with these questions. In lieu of formal determinations, the state Attorney General has issued a number of opinions—which have assumed that those five elements constitute the test—that appear to have done an able job of working through the unclear caselaw as carefully as possible.
Given the uncertainty here, it’s understandable that Baldwin’s team is focusing on the separation-of-powers argument, and not the dual officeholding argument under Section 28. But the law here is murky enough, and the specific facts of this case potentially egregious enough, that it could be worth raising it as an argument.
I teach Criminal Law later today, and the topic of the day is actually involuntary manslaughter. As I’ll explain to my students, the line between involuntary manslaughter and murder (specifically, what’s known as “depraved-heart” murder under the common law) is pretty fuzzy, and ultimately comes down to prosecutorial discretion—as this case exemplifies.
The examples cited by Gene Conklin in Plural Office Holding in 1948 involved holdings of the Oregon Supreme Court on the definition of “public office” generally, not in the context of a dual officeholding prohibition—but the definition of “public office” has multiple meanings. Conklin continued by noting, “The following have been held to be public officers: railroad commissioner, dog catcher, policeman, fireman, captain of a county-operated ferryboat, and an attorney appointed to assist the corporation commissioner. On the other hand, the following have been held by the court not to be public officers: members of a committee to buy or construct public works, members of a water commission to maintain city water works, commissioners for licensing sailors’ boardinghouses, commissioners of an incorporated port, a school teacher, members of a bridge committee, and members of the State Board of Higher Education.”
Quo warranto, Latin for “by what authority,” is a “common-law writ used to inquire into the authority by which a public office is held.” Black’s Law Dictionary (11th ed. 2019).