Cottrell v. Santillanes

901 P.2d 785, 120 N.M. 367
CourtNew Mexico Court of Appeals
DecidedJuly 19, 1995
Docket16242
StatusPublished
Cited by4 cases

This text of 901 P.2d 785 (Cottrell v. Santillanes) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cottrell v. Santillanes, 901 P.2d 785, 120 N.M. 367 (N.M. Ct. App. 1995).

Opinion

OPINION

FLORES, Judge.

The issue in this case is whether the New Mexico Constitution grants the City of Abuquerque, operating as a home rule municipality, the power to amend its charter to limit the term of its city councilors to no more than two elected terms. We hold that the Qualifications Clause, Article VII, Section 2 of the New Mexico Constitution, preempts a home rule municipality’s power to adopt additional qualifications for elected office within the state beyond those set forth in our Constitution. Accordingly, we reverse the district court.

BACKGROUND

On January 11,1994, a special election was held in which voters of the City of Albuquerque voted to amend the city charter to limit the term of city councilors to no more than two terms, effective January 1, 1994. The Amendment to Article IV of the Albuquerque City Charter (Charter Section 13) provides:

Section 13. Term Limits. Effective January 1, 1994, Councillors may not serve more than two elected terms. Councillors who have served more than two terms on that date may remain in office until their term expires.

Current and former city councilors (Appellants) who have served two or more terms filed a complaint for declaratory judgment in the district court challenging the constitutionality of Charter Section 13. The parties opposing the declaratory judgment action include the City of Albuquerque and its City Clerk, Millie Santillanes; Intervenors, which include New Mexicans for Term Limits and United We Stand, Inc., two groups that were involved in-drafting and/or campaigning for the passage of the amendment; a voter who voted in favor of its passage; and two current city councilors who support the amendment (collectively referred to as “Appellees”). The district court conducted a hearing on the merits of the declaratory judgment action and by order granted judgment in favor of Appellees stating that passage and enforcement of Charter Section 13 was a constitutional exercise of the city’s powers under the Home Rule Amendment, Article X, Section 6 of the New Mexico Constitution. Appellants appeal from this order.

DISCUSSION

The Home Rule Amendment to our constitution authorizes a municipality to adopt a home rule charter. N.M. Const, art. X, § 6. By doing so, the city becomes a home rule municipality and “may exercise all legislative powers and perform all functions not expressly denied by general law or charter.” Id. at § 6(D). The Home Rule Amendment further states that “[t]he purpose of this section is to provide for maximum local self-government” and that “[a] liberal construction shall be given to the powers of municipalities.” Id. at § 6(E). “Thus, home rule municipalities do not look to the legislature for a grant of power to legislate, but only look to statutes to determine if any express limitations have been placed on that power.” State ex rel. Haynes v. Bonem, 114 N.M. 627, 631, 845 P.2d 150, 154 (1992).

Additionally, the Municipal Charter Act, NMSA 1978, §§ 3-15-1 to -16 (Repl.1985 & Cum.Supp.1994), provides that:

The charter may provide for any system or form of government that may be deemed expedient and beneficial to the people of the municipality, including the manner of appointment or election of its officers, the recall of the officers and the petition and referendum of any ordinance, resolution or action of the municipality; provided, that the charter shall not be inconsistent with the [CJonstitution of New Mexico____

Section 3-15-7 (Repl.Pamp.1985) (emphasis added).

Appellants argue that the district court erred in concluding that the Home Rule Amendment to the constitution allows home rule municipalities to impose eligibility requirements for municipal elected office beyond those set forth in the Qualifications Clause and elsewhere in the constitution. Appellants contend that Charter Section 13 is preempted by the New Mexico Constitution. We agree.

The Qualifications Clause of our constitution sets out in positive terms the eligibility requirements for persons to hold any elective office within the state. It provides, in pertinent part:

A. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution.
B. The legislature may provide by law for such qualifications and standards as may be necessary for holding an appointive position by any public officer or employee.

N.M. Const, art. VII, § 2 (emphasis added). The other constitutional provision containing additional qualifications for municipal elected officials provides that “district and municipal officers, county commissioners, school board members and municipal governing body members shall be residents of the political subdivision or district from which they are elected or for which they are appointed.” Id. at art. V, § 13. Reading these constitutional provisions together, the law is that any citizen who is a qualified voter can hold any municipal elected office subject only to the residency requirement. See N.MAtt’y Gen. Op. 1596 (1915).

Accordingly, Charter Section 13 is inconsistent with the Qualifications Clause of the New Mexico Constitution. Under the language of the Qualifications Clause, the legislature lacks the power to add qualifications beyond those provided in the Constitution. Gibbany v. Ford, 29 N.M. 621, 625, 225 P. 577, 578 (1924).

[T]he Legislature has no power to add restrictions upon the right to hold office beyond those provided in the Constitution, because the constitutional provision [Article VII, § 2] is not a negative one, providing that no person shall be eligible to hold an office unless he possess certain qualifications, as is often the case in other states, but is a positive provision, giving the right to every person possessing the qualifications therein set forth to hold office, except as otherwise provided in the Constitution itself. Manifestly, therefore, the Legislature is without power to make added restrictions as a qualification to the right to hold the office of [city councilor]. To permit it to do so would authorize the super-addition of requirements to hold office beyond those provided by the Constitution.

Id.; see also N.M.Att’y Gen.Op. 85-4 (1985). Thus, the sole means of adopting additional qualifications is by constitutional amendment.

The Home Rule Amendment does not specifically grant home rule municipalities the authority to impose additional qualifications for elected office. Appellees assert that the phrase “not expressly denied by general law or charter,” N.M. Const, art. X, § 6(D), means that absent a clear denial in general law of the home rule municipality’s power to legislate, a municipality’s enactments cannot be overridden. To the extent that Appellees argue that such a clear denial must be phrased in negative terms or that the positive Qualifications Clause does not amount to a denial, we disagree. The Supreme Court, in Haynes, 114 N.M.

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Related

Kane v. City of Albuquerque
2015 NMSC 027 (New Mexico Supreme Court, 2015)
American Civil Liberties Union v. Santillanes
506 F. Supp. 2d 598 (D. New Mexico, 2007)
Dutmer v. City of San Antonio, Tex.
937 F. Supp. 587 (W.D. Texas, 1996)

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901 P.2d 785, 120 N.M. 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cottrell-v-santillanes-nmctapp-1995.