Kane v. City of Albuquerque

Citation2015 NMSC 027,358 P.3d 249
Decision Date13 August 2015
Docket Number34,811.
PartiesEmily KANE, Petitioner–Appellee, v. CITY OF ALBUQUERQUE, Respondent–Appellant.
CourtSupreme Court of New Mexico

Office of the City Attorney, David Tourek, City Attorney, Rebecca Elizabeth Wardlaw, Assistant City Attorney, Samantha M. Hults, Assistant City Attorney, Conklin, Woodcock & Ziegler, P.C., Robin A. Goble, Albuquerque, NM, for Appellant.

Cadigan Law Firm, P.C., Michael J. Cadigan, Kristina Caffrey, for Appellee.

Office of the Attorney General, Hector Balderas, Attorney General, Phillip Baca, Assistant Attorney General, for Intervener.

OPINION

CHÁVEZ, Justice.

{1} Since 1975, we have held that provisions precluding government employees from seeking elective office are constitutionally permissible personnel rules regulating conflicts of interest. See State ex rel. Gonzales v. Manzagol, 1975–NMSC–002, ¶¶ 18–19, 87 N.M. 230, 531 P.2d 1203. These personnel rules act as conditions of employment, and therefore do not constitute added qualifications for elective public office. See id. ¶ 13. Appellee Emily Kane (Kane) ran for elective office while she was employed at the Albuquerque Fire Department (the AFD) as a captain. Article X, Section 3 of the Charter of the City of Albuquerque (1989) (City Charter), and the City of Albuquerque Personnel Rules and Regulations (City Personnel Rules), Section 311.3 (2001), prohibit city employees from holding elective office. Kane sought injunctive relief to allow her to hold elective office while retaining her employment with the AFD. She contends that the employment regulations of the City of Albuquerque (the City) violate (1) the First and Fourth Amendments of the United States Constitution; (2) Article VII, Section 2 of the New Mexico Constitution ; and (3) Section 10–7F–9 of the Hazardous Duty Officers' Employer–Employee Relations Act, NMSA 1978, Sections 10–7F–1 to –9 (2010) (the HDOA). The district court granted Kane the relief she sought. We reverse. The City's employment regulations do not violate the First Amendment because they regulate conflicts of interest, and they are therefore rationally related to the legitimate government purpose of promoting administrative efficiency. Moreover, these regulations do not violate Article VII, Section 2 because they constitute conditions of employment that do not add additional qualifications to elective public office. Finally, the City's employment regulations are not preempted by Section 10–7F–9 because personnel rules touch upon issues of local rather than general concern, and they are therefore within the City's authority to promulgate.

I. BACKGROUND

{2} Kane is a captain in the AFD. During her employment with the AFD, she was nominated as a candidate for the New Mexico House of Representatives. Kane stated that she would neither campaign nor serve as a legislator while on duty. The City objected to Kane's candidacy.

{3} According to the stipulated facts, [b]eginning March 26, 2011, the City advised Kane via emails of city policies prohibiting her from running for or holding office and Kane acknowledged receipt that same day.” The chief of the AFD also “sent Kane a letter stating that she was not authorized under city law to be a candidate for public office.” Moreover, the AFD deputy chief “issued notices of investigation and conducted a pre-discipline interview of Kane relating to her candidacy.”

{4} The City asserts that Kane's candidacy was prohibited by multiple regulations. First, the City Charter provides that “employees of the city are prohibited from holding an elective office of the State of New Mexico or any of its political subdivisions....” City Charter art. X, § 3. Second, the City Personnel Rules provide that [n]o person shall ... [b]e a candidate for or hold an elective office of the State of New Mexico or any of its political subdivisions and that [n]o person shall engage in political activity that diminishes the integrity, efficiency or discipline of the City service.” City Personnel Rules § 311.3.

{5} Kane sought injunctive relief to enable her to seek elective office. She alleged that [t]he City demanded that [she] either withdraw her candidacy or resign her job.” She asked the district court to restrict “the City from taking any action to require her to withdraw her candidacy.” Kane argued that the City's employment regulations violate (1) the First and Fourteenth Amendments of the United States Constitution, (2) Article VII, Section 2 of the New Mexico Constitution, and (3) Section 10–7F–9.

{6} The district court granted Kane the permanent injunction she sought and awarded her attorney's fees. The City then appealed the district court's decision on the merits and the award of attorney's fees. The New Mexico Court of Appeals certified two related cases to this Court pursuant to Rule 12–606 NMRA. Kane v. City of Albuquerque, Nos. 32,343 & 32,683, Certification to Supreme Court (July 8, 2014), which we accepted on August 18, 2014.

II. DISCUSSION

A. Whether the City's Prohibitions Against Employers Seeking or Holding Elective Office Violate the First Amendment of the United States Constitution

{7} Kane argues that Article X, Section 3 of the City Charter and City Personnel Rules Section 311.3 violate the First Amendment of the United States Constitution. She claims that these provisions violate her right to candidacy, voters' rights, and the right of “a public employee to speak on matters of public concern.” Kane asserts that her right to candidacy and voters' rights are “hybrid and overlapping” such that the constitutional analysis “varies as the restrictions [on these rights] vary.” She contends that [b]ecause the City has severely restricted candidacy rights and because those restrictions impact the fundamental rights of voters, the City's [employment regulations] can survive only if narrowly tailored to advance a compelling state interest.” The City characterizes Kane's claim as concerning the right to candidacy and argues that “Kane has no fundamental [c]onstitutional right to seek or hold elective public office,” and the City's employment regulations “are rationally related to legitimate governmental interests.”

{8} The appropriate level of scrutiny varies with the analytical approach utilized for each of the three types of rights Kane asserts. Delineating these analytical approaches and their interrelationships is prerequisite to determining the proper level of scrutiny.

1. The right to candidacy and the right to vote

{9} The right to candidacy and the right to vote are subjected to differing levels of scrutiny. The right to candidacy is not fundamental, see Bullock v. Carter, 405 U.S. 134, 142–43, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), whereas the right to vote is fundamental. Anderson v. Celebrezze, 460 U.S. 780, 786 n. 7, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). Restrictions that only impair the right to candidacy are subject to rational basis review. See, e.g., Brazil–Breashears v. Bilandic, 53 F.3d 789, 793 (7th Cir.1995) (subjecting a state supreme court policy prohibiting judicial branch employees from becoming candidates for public office to a rational basis review). On the other hand, restrictions on voters' rights can be subjected to heightened scrutiny. See Wit v. Berman, 306 F.3d 1256, 1259 (2d Cir.2002).

{10} Although voters' rights and the right to candidacy are subject to differing levels of scrutiny, these rights are not easily separable. See Bullock, 405 U.S. at 142–43, 92 S.Ct. 849. Laws that narrow the field of candidates necessarily limit voter choice, and therefore “always have at least some theoretical, correlative effect on voters.” Id. at 143, 92 S.Ct. 849. Laws that tend to limit the field of candidates may “place burdens on two different, although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). Consequently, regulations limiting the field of candidates can, but do not automatically, compel heightened scrutiny. Bullock, 405 U.S. at 142–44, 92 S.Ct. 849. Although voters' rights are fundamental, “not all restrictions imposed by the States on candidates' eligibility for the ballot impose constitutionally-suspect burdens on voters' rights to associate or to choose among candidates.” Anderson, 460 U.S. at 788, 103 S.Ct. 1564 ; accord Grizzle v. Kemp, 634 F.3d 1314, 1321–22 (11th Cir.2011) (noting that the right to vote is fundamental, and that restrictions on candidacy imposing severe burdens on First Amendment rights are subject to heightened scrutiny); Lewis v. Guadagno, 837 F.Supp.2d 404, 411 (D.N.J.2011), aff'd, 445 Fed.Appx. 599 (3d Cir.2011) (“Numerous cases ... illustrate, either expressly or tacitly, the need for strict scrutiny of restrictions on candidacy only when those restrictions substantially and appreciably impact constitutional rights or basic political freedoms independent of the candidate's ability to run for public office.”). Laws limiting the field of candidates cannot circumscribe voters' rights on the basis of “financial status, political opinion, or membership in a protected class.” Lewis, 837 F.Supp.2d at 412.

{11} Bullock is instructive about when restrictions limiting the field of candidates trigger heightened scrutiny. See 405 U.S. at 142–44, 92 S.Ct. 849. Bullock involved a Texas law that required a candidate to pay a filing fee “as a condition to having his [or her] name placed on the ballot in a primary election.” Id. at 135, 92 S.Ct. 849. This regulation neither placed a condition on the right to vote nor quantitatively diluted the votes that were cast.

Id. at 143, 92 S.Ct. 849. Nevertheless, the filing fees precluded individuals who lacked either personal wealth or affluent backers from seeking office, even though they may be qualified and enjoy popular support. Id....

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