February 02, 2015 – Lee Einer v. Melanie Y. Rivera, in her official capacity as Clerk of San Juan County, No. 33,362

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: February 2, 2015

NO. 33,362

LEE EINER,
Petitioner Appellant,

V.

MELANIE Y. RIVERA,

in her offical capacity as

Clerk of San Miguel County,
Respondent- Appellee.

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Abigail Aragon, District Judge

Brannen Law LLC
Daniel E. Brannen Jr.
Santa Fe, NM

for Appellant

Jesus L. Lopez, San Miguel County Attomey
Las Vegas, NM

for Appellee

OPINION
WECHSLER, Judge.
{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.
BACKGROUND
{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).

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{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

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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.
MUNICIPAL CHARTER ACT
{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 (“The qualified
electors of a municipality who wish to be governed pursuant to Article 10, Section 6
of the constitution of New Mexico may adopt, amend or repeal a charter pursuant to
the Municipal Charter Act.”).
{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,

4
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) (changing the name of Jefferson
County to San Miguel County in 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

5
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.

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{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

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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 powers. We consider incorporation to be a specific process that requires
specific legislative authority. See §§ 3-2-1 to -9; §§ 3-3-1 to -4 (specifying the process
for a municipality to incorporate); see also NMSA 1978, §§ 53-12-1 to -4 (1967, as
amended through 2003) (specifying the process to form a business corporation);
NMSA 1978, §§ 53-8-30 to -33 (1975, as amended through 2003) (specifying the
process 	to 	form 	a 	nonprofit 	corporation). 	Section 	4-38-1 	is 	not 	an 	indirect
incorporation process.

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{13} 	Although we have appellate cases that have discussed Section 4-38-1 or its
predecessor statute, they do not affect our analysis of the Municipal Charter Act. For
example, in Board of Commissioners of Rio Arriba County v. Greacen, 2000-NMSC-
016, ¶ 5, 129 N.M. 177, 3 P.3d 672, in considering whether a county had the authority
to enact local traffic ordinances and retain collected penalty assessments, our Supreme
Court noted Section 4-38-1 and recognized that the county was organized and
exercised powers “as a body politic and corporate.” Nothing in Greacen addresses the
incorporation of the county. Similarly, State ex rel. Dow v. Graham, 1928-NMSC-
022, ¶ 6, 33 N.M. 504, 270 P. 897, involving a challenge to a legislative effort to
abolish Catron County, merely recites that Catron County is a “body politic and
corporate”; it does not consider any issue regarding incorporation.
{14} 	Our Supreme Court has also referred to counties as “municipal corporations.”
In Agua Pura, the issues involved a statute that limited actions questioning a franchise
granted by a municipal corporation to six years from the grant of the franchise and
deemed such franchises valid after the six-year period. 1900-NMSC-002, ¶ 14. The
plaintiff had entered a contract with the board of county commissioners in 1880 that
included supplying water within the county and to the “town and city of Las Vegas.”
Id. ¶¶ 10, 15. The Las Vegas city council sought to regulate the plaintiff’s rates under
an 1897 law that granted a city or town such authority provided that existing contracts

9
were not affected. Id. ¶ 9. The plaintiff sought an injunction against the city. Id. ¶ 4.
The Court’s holdings included that the contract was not subject to question and “valid
in all respects” because the plaintiff did not bring suit within the required time period.
Id. ¶ 15. The Court treated the county as a “municipal corporation.” Id. ¶ 13.
{15} 	Mountain States Telephone & Telegraph Co. v. Town of Belen, 1952-NMSC-
053, 56 N.M. 415, 244 P.2d 1112, involved a similar issue. The county commissioners
of Valencia County had granted a franchise to the defendant to provide telephone
service within the county in 1905. Id. ¶ 5. In 1949, the town of Belen, which was
incorporated in 1918, sought to require the defendant to accept a franchise to operate
within its corporate limits. Id. ¶¶ 1, 5. Our Supreme Court discussed its Agua Pura
opinion at length, in particular, its conclusions that the county commissioners in Agua
Pura had the power to grant a franchise to a public utility as a “municipal corporation”
and that the six-year limitation period for challenging actions by a “municipal
corporation” with respect to its grant of a franchise applied. Mountain States, 1952-
NMSC-053, ¶¶ 8-10.
{16} 	In Mountain States, our Supreme Court described counties as “bodies corporate
and politic” and stated their powers to be both “corporate” and “administrative.” Id.
¶ 6 (internal quotation marks and citation omitted). The Court, however, noted that the
Agua Pura Court did not examine, but merely assumed, that the Territorial Legislature

10
intended a county to be included as a “municipal corporation” allowed in the 1893
statute to grant a utility franchise. Mountain States, 1952-NMSC-053, ¶ 8. And, it
questioned the correctness of its prior conclusion in Agua Pura that a county was such
a municipal corporation, stating:
While the term “municipal corporation” is sometimes used, in its
broader meaning, to include such public bodies as the state and each of
the governmental subdivisions of the state,—such as counties, parishes,
townships, hundreds, etc.,—it ordinarily applies only to cities, villages,
and towns which are organized as full-fledged public corporations.
A county in a sense is a municipal corporation and sometimes is
classed as such; but strictly speaking a county is distinguishable from,
and is not, a municipal corporation.
Mountain States, 1952-NMSC-053, ¶ 8 (internal quotation marks and citations
omitted). The Court further noted that if the Agua Pura Court had examined the
meaning of the use of “municipal corporation” in the statute, “it might have reached
a different conclusion.” Mountain States, 1952-NMSC-053, ¶ 9. It nevertheless
followed Agua Pura because it had been “stare decisis in this [s]tate for more than half
a century.” Mountain States, 1952-NMSC-053, ¶ 10.
{17} 	As we have discussed, the issue before us in this case is not whether San Miguel
is a body corporate or a municipal corporation under Section 4-38-1, but rather
whether it is an incorporated county under the Municipal Charter Act. Although the
Territorial Legislature designed counties to have corporate powers, and such powers

11
have been used to broadly consider counties as “municipal corporations,” the
Municipal Charter Act is specific in its use of the term “incorporated county.” Section
3-15-3. With this specificity, the Legislature did not intend to use the broader sense
of corporate power discussed in 	Mountain States; it intended to 	include as
“incorporated” counties only counties “organized as full-fledged corporations.”
Mountain States, 1952-NMSC-053, ¶ 8 (internal quotation marks and citation
omitted).
{18} 	Any other interpretation of the Municipal Charter Act would not make sense.
See Baker v. Hedstrom, 2012-NMCA-073, ¶ 12, 284 P.3d 400 (“It is fundamental that
statutes will be construed so that their application will be neither absurd nor
unreasonable.” (internal quotation marks and citation omitted)). Article X, Section 5
of the New Mexico Constitution provides the procedure for a county to become
incorporated, as well as the authority of an incorporated county, and restricts it to a
county with less than one hundred forty-four square miles in area and a minimum
population of ten thousand. Why would the Legislature pass such a constitutional
amendment for voter approval to permit incorporation of such a limited class of
counties of the state if it intended all counties of the state to be incorporated by their
statutory creation?

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{19} 	It is apparent that the Legislature took no such action. Its intent in passing the
constitutional amendment to the voters was to limit incorporated counties to Los
Alamos County. Petitioner does not dispute that Los Alamos County is the only
county in the state that falls within the restrictions set forth in Article X, Section 5.
This provision, adopted in 1964, was not the first to single out Los Alamos County
from other counties. In 1955, the Legislature established the classification of H class
counties, defined as “[a]ny county which covers an area of not more that 200 square
miles.” NMSA 1978, § 4-44-3 (1985). (The record indicates that Los Alamos County
has a total area of 109 square miles and San Miguel County a total area of 4736 square
miles.) In 1965, with the adoption of the Municipal Code, Los Alamos County was
treated 	as 	a 	municipality. 	See 	NMSA 	1978, 	§ 	3-1-2(G) 	(1993) 	(including
“incorporated 	counties” 	and 	“H 	class 	counties” 	within 	the 	definition 	of
“municipality”). The Municipal Code permitted municipalities to incorporate as a
municipality. Sections 3-2-1 to -9. Los Alamos County did so in 1968. Thus, in 1971,
when adopting the Municipal Charter Act and defining a “municipality” to include
“incorporated counties,” the Legislature was merely continuing its precedent
distinguishing Los Alamos County from other counties.
{20} 	San Miguel County has no such history. It is not an “incorporated county”
under the Municipal Charter Act. Absent that status, it does not fall within the

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definition of “municipality” and is not entitled to a home rule charter under the
Municipal Charter Act.
HOME RULE AMENDMENT
{21} 	Petitioner makes the alternative argument that “San Miguel County is a
municipality with authority to adopt a home rule charter under the Home Rule
Amendment.” He contends that the Home Rule Amendment is self-executing in that
it provides that “[i]n the absence of law, the governing body of a municipality may
appoint a charter commission upon its own initiative or shall appoint a charter
commission upon the filing of a petition” of registered qualified electors. N.M. Const.
art. X, § 6(C).
{22} 	According to Petitioner, if the Municipal Charter Act does not apply, there is
an “absence of law” that triggers the self-executing aspect of the Home Rule
Amendment. Petitioner thus proposes that the meaning of “municipality” in the Home
Rule Amendment, which is not specifically defined, can be defined independently of
the Municipal Charter Act to include San Miguel County based on the plain meaning
of “municipality.” We do not agree with Petitioner’s arguments.
{23} 	First, we do not believe that it is appropriate to read the Home Rule Amendment
independently of the Municipal Charter Act. The Home Rule Amendment specifically
states that “registered qualified electors of a municipality may adopt . . . a charter in

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the manner provided by law.” N.M. Const. art. X, § 6(C). The Municipal Charter Act
is the law enacted to implement the Home Rule Amendment. In this manner, the
interpretation of the Home Rule Amendment is dependent on, not independent of, the
Municipal Charter Act. There is no “absence of law.”
{24} 	Second, even if the “municipality” in the Home Rule Amendment could be
given a different interpretation from “municipality” as defined in the Municipal
Charter Act, the plain meaning of “municipality” would not include a county.
Petitioner points to the definition of “municipality” in Black’s Law Dictionary as
embracing 	the 	plain 	meaning 	of 	the 	term. 	Black’s 	Law 	Dictionary 	defines
“municipality” and “municipal corporation” as:
A city, town, or other local political entity formed by charter from the
state and having the autonomous authority to administer the state’s local
affairs; esp., a public corporation created for political purposes and
endowed with political powers to be exercised for the public good in the
administration of local civil government.
Black’s Law Dictionary 1113 (9th ed. 2009). Although certain aspects of this
definition may apply to a New Mexico county, the only county in the state that is
either formed by charter or is a corporation is Los Alamos County.
{25} 	Petitioner additionally argues that the plain meaning of “municipality” as used
in the Home Rule Amendment includes counties because of the stated purpose of the
amendment “to provide for maximum local self-government[,]” Article X, Section

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6(E) of the New Mexico Constitution, and because it would be irrational to exclude
counties other than Los Alamos. However, the purpose of the Home Rule Amendment
is to provide maximum local self-government for “municipalities.” As we have
discussed, except for Los Alamos, the counties of the state are not municipalities.
While it may be an appropriate goal to have “maximum local self-government” at the
county level, such intent was not encompassed within the Home Rule Amendment.
{26} 	Moreover, the difference between counties and municipalities is more than mere
geography, as Petitioner suggests. “Historically, [a] county was solely the subdivision
of the state, constituted to administer state power and authority.” 1 Eugene McQuillin,
The Law of Municipal Corporations § 1:27, at 32 (3d ed. 2010). “[C]ounties have
been deliberately laid out, . . . [they] are artificial divisions created to share in state
government.” Id. § 1:25, at 26. Counties are formed by legislative act, see NMSA
1978, §§ 4-1 to -32 (1876, as amended through 1981) (establishing the boundaries of
the counties in New Mexico), and are subdivisions of the state. 1 McQuillin § 1:27,
at 32; El Dorado at Santa Fe, Inc., 1976-NMSC-029, ¶ 9. Municipal corporations are
“designed to promote the common interests of [their] inhabitants . . . [are]
representative of [their] citizens and taxpayers . . . [and are] established for the
advantage of . . . the public at large.” 1 McQuillin § 1:59, at 100. Municipalities are
self-governing. See 1 McQuillin § 1:36, at 50 (“Generally, municipal corporations are

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self-governing[.]”). Unlike counties, they are formed by incorporation or charter. See
§ 3-1-2(G) (“‘[M]unicipality’ means any incorporated city, town or village, whether
incorporated under general act, special act or special charter[.]”). Municipalities are
governed by the Municipal Code, see NMSA 1978, §§ 3-1-1 to -66-11 (1965, as
amended through 2014) (entitled, “Municipalities”), which is generally not applicable
to counties. See NMSA 1978, §§ 4-1-1 to -62-10 (1876, as amended through 2013)
(entitled, “Counties”). Although there may be certain overlap or parallel governing
principles with respect to municipalities and counties, and our courts have at times
referred to municipalities and counties in a common way, the two are not the same.
See, e.g., City of Albuquerque v. New Mexico Pub. Regulation Comm’n, 2003-NMSC-
028, ¶ 3, 134 N.M. 472, 79 P.3d 297 (stating that a municipality “is an auxiliary of the
state government” and a county “is but a political subdivision” of the state) (internal
quotation marks and citation omitted), 	see also 1 McQuillin § 2:54, at 283, 286
(“[Municipal Corporations] and counties have been declared to be separate and
distinct legal entities . . . . [T]he county is not, strictly speaking, a municipal
corporation[.]”); id. at 283 (“Counties are often distinguished from municipal
corporations in that counties are created without the consent of the inhabitants,
whereas the existence of municipal corporations ordinarily depends on the consent of

17
the inhabitants.”). We conclude that San Miguel County is not a municipality for the
purpose of the Home Rule Amendment.
EQUAL PROTECTION
{27} 	Petitioner argues that “[f]ailure to include San Miguel County in the term
‘municipality’ under the Home Rule Amendment and the Municipal Charter Act
would infringe [Petitioner’s] right to local self-government in a manner that violates
the federal and state Equal Protection Clauses.” U.S. Const. amend XIV, § 1; N.M.
Const. art. II, § 18. In other words, Petitioner argues that an interpretation of the Home
Rule Amendment and the Municipal Charter Act that fails to include all New Mexico
counties within the definition of “municipality” violates federal and New Mexico
equal protection guarantees because the residents of all counties except Los Alamos
are denied the possibility of a vote on whether to adopt county-based home rule.
{28} 	The right to equal protection under the law, both state and federal, affords a
guarantee that the government will treat similarly-situated individuals in an equal
manner. Breen v. Carlsbad Mun. Schs., 2005-NMSC-028, ¶ 7, 138 N.M. 331, 120
P.3d 413. Under equal protection analysis, the threshold inquiry is whether the
challenged legislation creates a class of similarly-situated persons who are treated
dissimilarly. Id. ¶ 10. Petitioner argues that, when read in combination, Sections 3-1-
2(G), 3-15-3, 3-15-4, and Article X, § 5 of the New Mexico Constitution, allow

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citizens residing in incorporated cities, towns, villages, and Los Alamos County the
potential for home rule but deny that potential to all others. For the purpose of this
analysis, we assume without deciding that the combined effect of the statutes is to
create a class of similarly-situated persons who are treated differently.
{29} 	The next step in an equal protection analysis is to determine the level of
scrutiny that applies to the challenged legislation. Breen, 2005-NMSC-028, ¶ 11.
Strict scrutiny, the standard of review least deferential to the Legislature, requires a
party defending a statute to “prove that the legislation furthers a compelling state
interest.” Griego, 2014-NMSC-003, ¶ 39. Strict scrutiny applies when statutes treat
a suspect class differently, or, generally, when statutes burden the exercise of
fundamental rights. Id. Fundamental rights include voting and interstate travel, among
others, and suspect classes include race and ancestry, among others. Marrujo v. N.M.
State Highway Transp. Dep’t, 1994-NMSC-116, ¶ 10, 118 N.M. 753, 887 P.2d 747.
Rational basis review is most deferential to the legislation. Under rational basis
review, the burden is on the party challenging the legislation in question to prove that
the legislation is not rationally related to a legitimate governmental purpose. Id.
Rational basis review applies to general social or economic legislation. Breen, 2005-
NMSC-028, ¶ 11. In between lies intermediate scrutiny. Intermediate scrutiny
generally applies to statutes that affect a sensitive class of individuals, such as the

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mentally disabled. Griego, 2014-NMSC-003, ¶ 39. Intermediate scrutiny requires that
the party defending the legislation prove a substantial relationship between the
legislation and an important government interest. Id.
{30} 	Petitioner contends that we should apply strict scrutiny to the challenged
legislation because the burdened right is fundamental. Petitioner argues that there is
a fundamental right to local self-governance and, further, that the fundamental right
is to the “utmost” local self-governance. Petitioner argues that this fundamental right
is burdened by the inability to vote for home rule, stating that only home rule
municipalities “have autonomy from state interference in matters of local concern,
power to control their own affairs, and the utmost ability to take policymaking
initiative.” Petitioner asserts that it is an equal protection violation for New Mexico
to “give the people of cities, towns, villages, and the county of Los Alamos the utmost
local autonomy, control, and policymaking initiative while depriving the people of the
other counties of the same local power.”
{31} 	In support of his argument, Petitioner cites the Declaration of Independence
para. 2 (U.S. 1776) (“Governments . . . deriv[e] their just powers from the consent of
the governed.”); the Ninth and Tenth Amendments of the United States Constitution
(“The enumeration in the Constitution of certain rights shall not be construed to deny
or disparage others retained by the people” and “[t]he powers not delegated to the

20
United States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people,” respectively); the Enabling Act for New Mexico
of 1910 (stating that the New Mexico Constitution “shall not be repugnant to . . . the
principles of the declaration of independence”); Article II, Section 2 of the New
Mexico Constitution (“All political power is vested in and derived from the people:
all government of right originates with the people, is founded upon their will and is
instituted solely for their good.”); and Article II, Section 3 of the New Mexico
Constitution (“The people of the state have the sole and exclusive right to govern
themselves as a free, sovereign and independent state.”). These authorities seem to
establish a broad right to political power and self-government, but, even assuming that
there is a local dimension to that right, we do not recognize in these authorities a
fundamental right to the utmost local control and autonomy as asserted by Petitioner.
{32} 	Petitioner also cites a number of cases in support of his contention that the
right burdened is fundamental and so demands strict scrutiny under equal
protection analysis. These cases are unpersuasive in this context. Petitioner cites
Griffin v. County School Board of Prince Edward County, noting that the United
States Supreme Court did not allow a county in Virginia to de-fund and keep
closed its public schools for the ultimate purpose of maintaining segregated

1 Petitioner cites to, for example, Kramer v. Union Free School District No. 15,
395 U.S. 621, 622, 628 (1969) (evaluating a statute that limited the right to vote in
certain New York school districts under “exacting judicial scrutiny”) and Brown v.
Entertainment Merchants Ass’n, 131 S.Ct. 2729, 2738 (2011) (evaluating a statute that
restricted the content of protected speech under strict scrutiny).
21
education. 377 U.S. 218, 222-23, 225 (1964). Griffin was grounded in federal
equal protection analysis, holding that:
A [s]tate, of course, has wide discretion in deciding whether
laws shall operate statewide or shall operate only in certain
counties, the legislature having in mind the needs and desires of
each. . . . [But w]hatever nonracial grounds might support a [s]tate’s
allowing a county to abandon public schools, . . . grounds of race
and opposition to desegregation do not qualify as constitutional.
Id. at 231 (internal quotation marks and citation omitted). This language
suggests an equal protection analysis not based on a fundamental right, as
Petitioner contends, but, instead, on race as a suspect class. Because Petitioner
does not argue that there is an issue in this case that relates to race or any other
suspect class, and because Griffin does not address fundamental rights, Griffin
is not persuasive.
{33} 	The other cases cited by Petitioner are similarly off-point. 1 Mere reference to
cases in which a court applied strict scrutiny to an infringement of a fundamental
right, such as the right to vote, that is unrelated to the right Petitioner would have us
recognize, fails to persuade us that we should apply strict scrutiny in this case. Nor

2 For example, Board of Education of the Village of Cimarron v. Maloney,
1970-NMSC-146, ¶¶ 5, 8, 82 N.M. 167, 477 P.2d 605 (invalidating a provision of the
New Mexico Constitution requiring ownership of real property as a prerequisite to
voting on the creation of bond debt but without reference to a standard of scrutiny or
fundamental rights) and Nixon v. Condon, 286 U.S. 73, 81, 89 (1932) (invalidating as
a violation of the equal protection clause a law preventing non-whites from voting in
primary elections in Texas).
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are we persuaded by cases cited by Petitioner that invalidate statutes or constitutional
provisions as violations of equal protection without reference to a standard of review
or reference to whether the right in question was fundamental. 2
{34} 	We conclude that rational basis review is appropriate in this case. There is no
fundamental right that is violated by a statutory and constitutional scheme that allows
the residents of Los Alamos County to engage in county-based home rule while
residents of other counties cannot. As the United States Supreme Court noted in
Griffin, 377 U.S. at 231, “there are reasons why one county ought not to be treated
like another,” and the nature of the legislative function is to draw lines that “leave[]
some out that might well have been included.” Trujillo v. City of Albuquerque, 1998-
NMSC-031, ¶ 28, 125 N.M. 721, 965 P.2d 305 (quoting Vill. of Belle Terre v. Boraas,
416 U.S. 1, 8 (1974)). Under rational basis scrutiny, the burden falls on Petitioner “to
prove that the legislation is not rationally related to a legitimate governmental
purpose.” See Griego, 2014-NMSC-003, ¶ 39 (stating that under rational basis
scrutiny the burden is on the party challenging the legislation to prove that statute is

23
not rationally related to a legitimate governmental purpose). Petitioner has not
constructed such an argument, instead relying solely on the argument that strict
scrutiny is appropriate. We note that San Miguel County is more than forty times as
large as Los Alamos County. It is a rational policy choice for the Legislature and the
people of New Mexico to treat Los Alamos County differently from other counties on
the basis of its size and its unique history and characteristics. Under rational basis
review, the legislative scheme challenged by Petitioner does not violate equal
protection guarantees under the United States or New Mexico Constitutions.
{35} 	CONCLUSION
{36} 	For the foregoing reasons, we affirm the district court’s denial of a petition for
mandamus.
{37} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
MICHAEL D. BUSTAMANTE, Judge

RODERICK T. KENNEDY, Judge
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