Einer v. Rivera
| Decision Date | 02 February 2015 |
| Docket Number | No. 35,131.,33,362.,35,131. |
| Citation | 346 P.3d 1197 |
| Parties | Lee EINER, Petitioner–Appellant, v. Melanie Y. RIVERA, in her official capacity as Clerk of San Miguel County, Respondent–Appellee. |
| Court | Court of Appeals of New Mexico |
Daniel E. Brannen Jr., Brannen Law LLC, Santa Fe, NM, for Appellant.
Jesus L. Lopez, San Miguel County Attorney, Las Vegas, NM, for Appellee.
{1} We consider in this appeal whether San Miguel County is subject to the home rule charter process of the Home Rule Amendment, Article X, Section 6 of the New Mexico Constitution, and the Municipal Charter Act, NMSA 1978, §§ 3–15–1 to –16 (1965, as amended through 1990). We hold that it is not, concluding that San Miguel County is not a “municipality” within the Municipal Charter Act or the Home Rule Amendment. We further conclude that our holding does not violate the constitutional equal protection rights of Petitioner Lee Einer. We affirm the district court's denial of a petition for mandamus.
{2} The attorneys for Petitioner, a resident of San Miguel County, submitted a form petition to Respondent Melanie Y. Rivera, the County Clerk, requesting that Respondent approve the form of the petition for circulation to qualified electors. The petition requested the San Miguel County Commission to appoint a charter commission providing for the “home rule” government of the county. NMSA 1978, Section 3–1–5 (2007) provides the procedure for approval of the form of a municipal home rule petition that includes approval by a county clerk if the form meets specified statutory requirements. Section 3–1–5(C).
{3} The San Miguel County attorney responded to the request, advising that Respondent declined to act on the petition because the petition seeking incorporation of the county and adoption of a charter was not authorized by law. After an additional exchange of letters between counsel, Petitioner filed a writ of mandamus, requesting that the district court issue (1) a declaratory judgment that San Miguel County is a “municipality” under the Municipal Charter Act and that the form of petition met the requirements of Section 3–1–5(C) ; and (2) a peremptory or alternative writ of mandamus, compelling Respondent to approve the petition.
{4} The parties filed stipulated findings of fact and proposed conclusions of law and cross-motions for summary judgment. The district court denied Petitioner's motion, granted Respondent's motion, and denied the petition for a writ. It stated that San Miguel County was “not a municipality as contemplated in the Municipal Code and Municipal Charter Act.”
{5} On appeal, Petitioner argues, as he did in the district court, that (1) San Miguel County is a municipality with authority to adopt a home rule charter under the Municipal Charter Act; (2) San Miguel County is a municipality with authority to adopt a home rule charter under the Home Rule Amendment; and (3) if San Miguel County is not recognized as a municipality under the Municipal Charter Act and the Home Rule Amendment, his right to local self-government would be infringed in violation of the Equal Protection Clause of the Fourth Amendment of the United States Constitution and Article II, Section 18 of the New Mexico Constitution.
{6} The Home Rule Amendment was adopted in 1970. It permits the qualified electors of a municipality to adopt “in the manner provided by law” a charter for the exercise of legislative powers. N.M. Const. art. X, § 6 (C), (D). The Legislature adopted the Municipal Charter Act the following year, providing the manner by which the Home Rule Amendment was to be carried out. See, e.g., § 3–15–2 ().
{7} The Municipal Charter Act permits the qualified electors of a municipality to petition for the adoption of a home rule charter. Section 3–15–4. It defines a “municipality” to mean “any incorporated city, town, village or county, whether incorporated under general act, special act or constitutional provision.” Section 3–15–3. Petitioner's argument that the Municipal Charter Act provides San Miguel County with the authority to adopt a home rule charter hinges on this definition. Specifically, in order for Petitioner to be entitled to petition for a home rule charter, San Miguel County must be an incorporated county, “incorporated under general act, special act or constitutional provision.” Id. As a matter of statutory interpretation, we address Petitioner's argument on appeal under de novo review. State v. Almanzar,
2014–NMSC–001, ¶ 15, 316 P.3d 183. We interpret the Municipal Charter Act in order to fulfill its legislative intent. Griego v. Oliver, 2014–NMSC–003, ¶ 20, 316 P.3d 865. In doing so, we first look to the language of the relevant statutes. Id. ¶ 21.
{8} Petitioner asserts that San Miguel County is an incorporated county by virtue of both a special act, Chapter 142, Section 1 of New Mexico Laws of 1923, codified at NMSA 1978, Section 4–25–1 (1923), and a general act, Chapter 1, Section 3 of New Mexico Laws of 1876, codified at NMSA 1978, Section 4–38–1 (1876). Section 4–25–1 created the county presently named San Miguel County and established its geographic boundaries. See NMSA 1978, § 4–25–7 (1923) (). A county is a subdivision of the state. El Dorado at Santa Fe, Inc. v. Bd. of Cnty. Comm'rs of Santa Fe Cnty., 1976–NMSC–029, ¶ 6, 89 N.M. 313, 551 P.2d 1360. It “possesses only such powers as are expressly granted to it by the Legislature, together with those necessarily implied to implement those express powers.” Id. Nothing in Section 4–25–1 incorporated San Miguel County.
{9} Section 4–38–1 states: “The powers of a county as a body politic and corporate shall be exercised by a board of county commissioners.” Petitioner reads this statute as establishing that a county in New Mexico is necessarily an incorporated county. But, a body “corporate” and an “incorporated” body are not the same for the purposes of defining a municipality under the Municipal Charter Act.
{10} The Municipal Charter Act specifically defines a “municipality” to include an “incorporated ... county” as well as incorporated cities, towns, or villages. Section 3–15–3. It specifies that a municipality may be incorporated under a “general act, special act or constitutional provision.” Id. Significantly, when the Legislature passed the Municipal Charter Act, the Municipal Code contained provisions for the incorporation of municipalities both generally and under special act. NMSA 1978, §§ 3–2–1 to –9 (1965, as amended through 2013); NMSA 1978, §§ 3–3–1 to –4 (1965, as amended through 1985). Both such procedures required petitions and elections. Section 3–2–1, –5(E); Section 3–3–2, –3. In addition, at the time the Municipal Charter Act was enacted, the New Mexico Constitution provided for the incorporation of counties that are “less than one hundred forty-four square miles in area and ha [ve] a population of ten thousand or more.” N.M. Const., art. X, § 5 (adopted in 1964). The procedure for the incorporation of a county requires an election on a draft charter. Id. Article X, Section 5 of the New Mexico Constitution grants a county incorporated under its provisions the same powers constitutionally and statutorily granted to municipalities. Id.
{11} Other than Article X, Section 5, there is no New Mexico constitutional or statutory provision that “incorporates” a county. The Home Rule Amendment permits a “municipality” to adopt a charter and to exercise certain legislative powers. N.M. Const. art. X, § 6 (D). The Municipal Charter Act treats an “incorporated” county as a municipality. But, the constitutional and statutory backdrop at the time the Legislature enacted the Municipal Charter Act indicates that the legislative intent in defining “municipality” to include an “incorporated” county was to embrace within the Home Rule Amendment a county that incorporated under Article X, Section 5 and, thereby, acquired the same powers constitutionally and statutorily granted to municipalities.
{12} Section 4–38–1 states that a board of county commissioners has the authority to exercise the powers of the county “as a body politic and corporate.” It was adopted, along with the establishment of organized counties as bodies corporate and politic in 1876. 1876 N.M. Laws, ch. 1, §§ 1, 3. These statutes were enacted because, at that time, there was “no general law for the incorporation of cities or towns, in which powers of local administration are usually vested[,]” and the Territorial Legislature did not want communities to “be without municipal government of some kind[.]” Agua Pura Co. v. Mayor of Las Vegas, 1900–NMSC–002, ¶ 13, 10 N.M. 6, 60 P. 208. These statutes recognize the counties as subdivisions of the territory, and later the state, and, with that status as distinct entities, they may exercise powers necessary for their operation. In Section 4–38–1, the Territorial Legislature described a county's powers as “corporate,” and, indeed, these powers resemble those of a corporation. See 3 The Oxford English Dictionary 955 (2d ed.1991 reprint) (defining “corporate county” as “a city or town with its liberties, which has been constituted a county of itself, independent of the jurisdiction of the historical county or shire in which it is situated”); The American Heritage Dictionary of the English Language 41 (5th ed.2011) (defining “corporate” in relevant part as “[o]f or relating to a corporative government or political system”). But neither Section 4–38–1 nor Section 4–25–1 is an incorporation provision or indicates an intent of the Legislature to incorporate counties. They do not provide any procedure for a county to incorporate or even to acquire any...
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