Velasquez v. Chavez, 15641

• Decision Date: 08 November 1984
• Docket Number: No. 15641,15641
• Citation: 102 N.M. 54,1984 NMSC 109,691 P.2d 55,10 Kan.App.2d 55
• Parties: Antonio I. VELASQUEZ, Contestant-Appellee, v. Richard L. CHAVEZ, Contestee-Appellant.
• Court: New Mexico Supreme Court

Page 55

691 P.2d 55

102 N.M. 54

Antonio I. VELASQUEZ, Contestant-Appellee, v. Richard L. CHAVEZ, Contestee-Appellant.

No. 15641.

Supreme Court of New Mexico.

Nov. 8, 1984.

[102 NM 54] Jesus L. Lopez, Nicolas T. Leger, Las Vegas, for contestee-appellant.

Robert F. Sanchez, Las Vegas, for contestant-appellee.

OPINION

STOWERS, Justice.

Appellant Richard L. Chavez (Chavez) appeals the trial court's decision that he was ineligible to seek or hold the office of Guadalupe County Commissioner for District 3 because he was not a resident of that county commission district. We affirm.

The issue we determine is whether a candidate for County Commission must reside in the district for which he runs.

In the Guadalupe County Democratic primary, three people filed for the County Commission position for District 3: Chavez, appellee Antonio I. Velasquez (Velasquez), and Albert N. Sanchez. Chavez received the most votes in the election, was certified as the winner, and was designated the nominee for the position. Velasquez then filed an election contest alleging that because Chavez did not reside in the district, he was ineligible for the position. Chavez admitted that he lives and resides within Commission District 2. After a hearing, the trial court found that Chavez resided within District 2; that he was not eligible or legally qualified to run for the District 3 position; that he received the majority of the votes cast for the position; and that he received a certificate of nomination from the County Canvassing Board. The trial court then concluded that Chavez was ineligible to run for the office, that there exists a vacancy on the democratic ballot for the office, and that the vacancy is to be filled by the Guadalupe County Democrat Central Committee. The Committee designated Velasquez as the candidate. Chavez then filed this appeal. There is no republican opposition for the position.

The requirement that counties in New Mexico be divided into three county commission districts has a long legislative history in this State. As early as 1876, with the enactment of the Acts of the Legislative Assembly of the Territory of New Mexico, each county was required to be divided. See 1876 N.M. Laws, ch. 1, Sec. 10. In subsequent years, this provision remained substantially unchanged. See, e.g., 1897 N.M. Laws, Title VII, ch. 1, Sec. 660; NMSA 1915, Sec. 1190; NMSA 1929, Sec. 33-4203; NMSA 1941, Sec. 15-3503. In 1941, the Legislature attempted to amend the provision and require that "one commissioner shall be nominated at the primary election by the qualified electors of the district wherein such commissioner resides." 1941 N.M. Laws, ch. 194, Sec. 1. An attorney general opinion subsequently stated that the 1941 law was unconstitutional and as a result, the original law was still in full force and effect. AG Op. No. 4043 (1942). The opinion noted that a commissioner's district is not a political sub-division as contemplated under Article V, Section 13 of the 1941 New Mexico Constitution which provided that "[a]ll district, county, precinct and municipal officers, shall be residents of the political subdivisions for which they are elected or appointed." Cf. Gibbany v. Ford, 29 N.M. 621, 225 P. 577 (1924) (wards of a municipality are not "political subdivisions" within the meaning of N.M. Const. art. V, Section 13).

In 1959, the Legislature again attempted to amend the districting statute to require residency. 1959 N.M.Laws, ch. 106, Sec. 1. However, until the New Mexico Constitution was amended in 1960, to allow such residency requirements, these provisions would have been invalid. Article V, Section 13 as amended now provides:

All district, county, precinct and municipal officers, shall be residents of the political subdivisions for which they are elected or appointed. The legislature is authorized to enact laws permitting division of counties of this state into county commission districts. The legislature may in its discretion provide that elective county commissioners reside in their respective county...