EMILY KANE, Petitioner-Appellee, v. CITY OF ALBUQUERQUE, Respondent-Appellant.
NO. 34,811
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
August 13, 2015
CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS
Beatrice J. Brickhouse, District Judge
David Tourek, City Attorney
Rebecca Elizabeth Wardlaw, Assistant City Attorney
Samantha M. Hults, Assistant City Attorney
Albuquerque, NM
Conklin, Woodcock & Ziegler, P.C.
Robin A. Goble
Albuquerque, NM
for Appellant
Michael J. Cadigan
Kristina Caffrey
for Appellee
Office of the Attorney General
Hector Balderas, Attorney General
Phillip Baca, Assistant Attorney General
for Intervener
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.
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
{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. . . .”
{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
{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
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
{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 (1972), whereas the right to vote is fundamental. Anderson v. Celebrezze, 460 U.S. 780, 786 n.7 (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.
{11} Bullock is instructive about when restrictions limiting the field of candidates trigger heightened scrutiny. See 405 U.S. at 142-44. 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. This regulation neither placed a condition on the right to vote nor quantitatively diluted the votes that were cast. Id. at 143. 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. at 144. Consequently, voters were “substantially limited in their choice of candidates, [and] there [was] the obvious likelihood that this limitation would fall more heavily on the less affluent segment of the community, whose favorites may [have been] unable to pay the large costs required by the Texas system.” Id. The Texas electoral system thus created a disparity in voting power based on wealth, which required the Court to review the filing fee system under heightened scrutiny. Id.
{12} By contrast, Lewis refused to apply heightened scrutiny in analyzing “New
{13} Kane relies on Anderson to support her position that we apply heightened scrutiny. In Anderson, a statutory filing deadline precluded a presidential candidate from “qualify[ing] for a position on the ballot in Ohio,” even though he met “the substantive requirements for having his name placed on the ballot.” 460 U.S. at 782. The issue in Anderson was “whether Ohio‘s early filing deadline placed an unconstitutional burden on the voting and associational rights of [the candidate‘s] supporters.” Id. Ohio‘s early filing deadline required independent presidential candidates to qualify for the November general election ballot by mid-to-late March of the election year. Id. at 782-83, 790. By contrast, major political party candidates did not have to qualify for the general election ballot for another five months. Id. at 791. Thus, by comparison with supporters of the major political parties, the early filing deadline provided independent voters with less time for deciding which
{14} The Anderson Court concluded that this burden was problematic. See id. at 792-94. “[T]he primary values protected by the
{15} Anderson is distinguishable from the case at bar. First, the City, by precluding City employees from holding elective office, does not impinge on voters’ choice by limiting the field of potential candidates,
{16} As other courts have done in similar circumstances, we subject the City‘s employment regulations to rational basis review. See, e.g., Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 658 (6th Cir. 2008) (applying rational basis review to a statute that “bars the candidacy of an official whose principal employment is in connection with an activity which is financed in whole or in part by the federal government” (internal quotation marks and citation omitted)); Brazil-Breashears, 53 F.3d at 793 (concluding that a policy prohibiting state judiciary employees from becoming candidates for public office need only survive rational basis review in part
{17} Under rational basis review, a law “need only be rationally related to a legitimate government purpose.” Leib v. Hillsborough Cty. Pub. Transp. Comm‘n, 558 F.3d 1301, 1306 (11th Cir. 2009). We first consider whether the City‘s employment regulations serve a legitimate government purpose. To prevail, the City need only establish “the existence of a conceivable rational basis” for its regulations. Panama City Med. Diagnostic Ltd. v. Williams, 13 F.3d 1541, 1547 (11th Cir. 1994). The City need not prove that a “basis was actually considered by [a] legislative body.” Id. The standard of review that the district court applied to the City‘s employment regulations is unclear, but the district court nevertheless found that “[t]he City does not have a valid interest in preventing City employees from running for and holding non-City elected office.” We disagree and hold that the City has multiple legitimate interests in promulgating its employment regulations.
{18} First, the City has an interest in minimizing, if not eliminating, conflicting demands on public employees. Forty years ago, this Court noted in Manzagol that
{19} Second, the City has a legitimate interest in limiting the perception of partisan influence among its employees. See Molina-Crespo, 547 F.3d at 658. For example, Kane‘s identification with a certain political party could conceivably put pressure, either actual or perceived, on her subordinates “to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their
{20} Kane erroneously contends that even if the City‘s employment regulations further legitimate governmental purposes as they applied to her, the City‘s preclusion of employees from seeking both partisan and non-partisan elective offices is unconstitutionally overbroad. Under rational basis review, we do not consider situations such as the claims of candidates seeking non-partisan office that are not before the Court. Manzagol, 1975-NMSC-002, ¶ 16 (“Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” (internal quotation marks and citations omitted)); accord Clements v. Fashing, 457 U.S. 957, 960, 972 n.6 (1982) (noting that a litigant contesting a resign-to-run statute “may not challenge the provision‘s application to him [or her] on the grounds that the provision might be unconstitutional as applied to a class of officeholders not before the Court“).
{21} Having established that the City has legitimate interests in preventing conflicting demands on its public servants and avoiding the perception of partisanship
{22} We conclude that the City‘s employment regulations are rationally related to legitimate government purposes and hold that these provisions do not unconstitutionally circumscribe either the right to candidacy or voters’ rights. We next address whether the City unconstitutionally limited Kane‘s right to speak on matters of public concern.
2. The right to speak on matters of public concern
{23} Kane argues that her right to engage in “pure political speech” was infringed because her right to speak on matters of public concern was harmed when the City
{24} Most federal circuits have concluded that candidacy for office is a matter of public concern. See, e.g., Jantzen v. Hawkins, 188 F.3d 1247, 1257 (10th Cir. 1999) (concluding that a candidate‘s “political speech—his [or her] candidacy for office—undoubtedly relates to matters of public concern“); Click v. Copeland, 970 F.2d 106, 112 (5th Cir. 1992) (concluding that “running for elected office[] addresse[s] matters of public concern“); see generally Ross Staine, First Amendment Protection for Political Candidacy of Public Employees, 66 SMU L. Rev. 461 (2013) (surveying cases concerning the right to speak on matters of public concern). A minority position holds that the mere fact of candidacy is not a matter of public concern. See, e.g., Carver v. Dennis, 104 F.3d 847, 853 (6th Cir. 1997) (holding that where an employee “was fired [solely] for announcing her intention to take her boss‘s office,” the employee did not speak on a matter of public concern), limitation of holding recognized by Greenwell v. Parsley, 541 F.3d 401, 403-04 (6th Cir. 2008). For speech to be considered a matter of public concern, this minority position requires that potential candidates express their political viewpoints. Murphy v. Cockrell, 505 F.3d 446, 451 (6th Cir. 2007) (discussing Carver and distinguishing “cases in which candidates had been singled out or treated differently based on their political viewpoints or expressions, noting that [the candidate in Carver] was dismissed solely based on the fact of his candidacy, not his political views“).
{25} Kane relies on Murphy, a minority position case, and argues that “the City did not threaten disciplinary action because of the mere fact of Ms. Kane‘s candidacy, but did so due to the manner in which Ms. Kane campaigned.” We therefore determine
{26} In Murphy, a Democratic subordinate ran against a Republican supervisor for an elective office. Id. at 448. During the campaign, the subordinate “attacked [the supervisor‘s] perceived inexperience” for the office. Id. When the supervisor prevailed, the subordinate was discharged. Id. at 449. Murphy held that the subordinate‘s campaign speech was protected under the First Amendment and employed the balancing prong of the Pickering test. Murphy, 505 F.3d at 452.
{27} Kane attempts to analogize her situation to the situation in Murphy. She alleges that unlike previous AFD employees who sought elective office, she notified her superiors of her intention to run; she was threatened with potential disciplinary treatment because she chose to disregard the City‘s employment regulations; and other City employees were not disciplined for their candidacies because they did not notify the City of their political aspirations. Kane presumably is contending that the City‘s threat of discipline was unconstitutional under Murphy because the threat amounted to an attack on the expression of her political viewpoints, since the threat followed from Kane‘s notification of her candidacy.
{28} Murphy is distinguishable from the case at bar. The subordinate in Murphy
was not discharged pursuant to a personnel regulation that precluded her candidacy, see generally 505 F.3d 446, but was terminated for campaign speech that reflected negatively on her supervisor. Id. at 451-52. Thus, the supervisor in Murphy had discretion in discharging the subordinate. Consequently, the supervisor, in choosing to discharge the subordinate on the basis of campaign speech, effectively politicized a personnel decision2 in a manner that circumscribed political expression beyond that mandated by law. In contrast, Kane was threatened with discipline pursuant to the City Personnel Rules. This threat of discipline was therefore not an arbitrary attempt to limit political expression, but instead was an attempt to enforce existing employment regulations. Moreover, unlike the subordinate in Murphy, Kane does not allege facts to suggest that she was attacked for expressing a political viewpoint. For example, she did not attack the credentials of a candidate for public office. She merely alleges that she was attacked for notifying her superiors of her intention to run{29} Moreover, even if we were to decide that the mere fact of candidacy was a matter of public concern, Kane would still not prevail. Laws that preclude government employees from a wide range of political activities have been upheld as constitutional; constitutionally prohibited activities include “raising money for, publicly endorsing, or campaigning for political candidates; serving as an officer of a political club; participating as a delegate in a political convention or running for office in a political party; and writing letters on political subjects to newspapers.” Phillips v. City of Dallas, 781 F.3d 772, 780 (5th Cir. 2015). These laws are justifiable because political activity may become a basis for the preferential treatment of employees, damage morale, and therefore impair government efficiency. See id.; Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1314-15 (Fed. Cir. 2003). Thus, even when the mere fact of candidacy is considered a matter of a public concern,
{30} In conclusion, Kane‘s right to speak on matters of public concern was not violated. Having already held that the City‘s employment regulations do not violate either candidates’ or voters’ rights, we will not hold unconstitutional the City‘s attempts to apply its employment regulations by threatening non-complying employees with discipline.
B. The City‘s Employment Provisions Do Not Violate Article VII, Section 2 of the New Mexico Constitution Because They Are Permissible Qualifications and Standards for Holding Appointive Public Positions Under Article VII, Section 2(B)
{31} Kane next argues that the City‘s employment regulations add a qualification for holding elective public office—that the citizen not be a City employee—in violation of
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.
{32} Whose interpretation is correct necessarily turns on whether the City Charter and City Personnel Rules prohibiting city employees from simultaneously running for elective office or holding elective office are a qualification for elective office or a qualification and standard for holding an appointive public position.
{33} The legislative history of
{34}
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.3
{35} Subsection A concerns qualifications for “elective public office,”
{36} The 1961 amendment indicates that qualifications for elective public office can only be promulgated through the New Mexico Constitution.
{37} When the Legislature amended the Personnel Act in 1963 to conform to the 1961 amendment of
[t]he purpose of the Personnel Act is to establish for New Mexico a system of personnel administration based solely on qualification and ability, which will provide greater economy and efficiency in the management of state affairs. The Personnel Act is enacted under and pursuant to the provisions of article 7, section 2 of the Constitution of New Mexico, as amended.
{38} The District Attorney Personnel and Compensation Act,
{39} We must next determine whether the City Charter and employee regulations are impermissible “qualifi[cations] to hold any elective public office” within the meaning of
No effort is being made [by Section 5-4-42(B)] to impose any restriction upon the elective public office which Petitioner holds or upon him as the holder of that office. It is his appointive position as a “public officer or employee” which is in danger by his persistent action in holding a “political office.”
Manzagol, 1975-NMSC-002, ¶ 13.
{40} Legal precedent supports Manzagol‘s distinction between impermissible, additional qualifications for elective public office and permissible employment regulations for appointive positions. In New Mexico, a qualified individual is one who is eligible for elective public office. Bd. of Comm‘rs of Guadalupe Cty. v. Dist. Ct. of Fourth Jud. Dist., 1924-NMSC-009, ¶ 29, 29 N.M. 244, 223 P. 516.
{41} Under Manzagol, the City‘s employee regulations neither preclude Kane from holding elective office, City Charter art. X, § 3, nor from seeking elective office, City Personnel Rules § 311.3. As such, the City‘s employee regulations are not qualifications within the meaning of
{42} Nonetheless, Kane relies on Cottrell to argue that the City‘s employment regulations are impermissible qualifications for elective public office. Cottrell concerned a municipal charter that required “candidates for the Albuquerque City Council not [to] have served two prior terms.” 1995-NMCA-090, ¶ 16. The issue was whether this provision constituted an impermissible qualification on elective public office in contravention of
{43} Kane contends that her situation is analogous to the situation in Cottrell. We disagree. Cottrell properly stands for the proposition that under
{44} We next determine whether the City has the authority to promulgate qualifications and standards within the meaning of
Clearly, the Legislature had the constitutional power under art. 7, § 2, subd. B . . . to enact 5-4-42(B) . . . and to thereby provide, as a qualification or standard for his [or her] continued employment by the State in a position covered by the . . . Personnel Act, that he [or she] not hold “political office.”
Manzagol, 1975-NMSC-002, ¶ 13. However, Manzagol does not specifically address whether municipalities may adopt regulations addressing personnel administration. We hold that under
{45} In 1994, the Court of Appeals noted that
(1) encouraging public officials to devote themselves exclusively to the duties of their office, (2) reducing the possibility of public subsidies for officials merely using their office as a stepping stone, (3) preventing abuse of office before and after election, and (4) protecting the expectations of the electorate voting a candidate into [public] office.
Fasi v. Cayetano, 752 F. Supp. 942, 949 (D. Haw. 1990).
{46} A municipality is defined as “any incorporated city, town or village.”
C. Whether Section 10-7F-9 Preempts the City‘s Prohibition Against Municipal Employees Seeking Elective Office
{47} Finally, Kane argues that Article X, Section 3 of the City Charter is not a valid exercise of the City‘s municipal powers because it is preempted by
{49} Determining whether
{50} Kane argues that Article X, Section 3 of the City Charter is not a valid exercise of the City‘s legislative authority. Under Kane‘s interpretation of
1. Whether Section 10-7F-9 is a general law
{51} A general law is “a law that applies generally throughout the state and is of statewide concern as contrasted to ‘local’ or ‘municipal’ law.” Haynes, 1992-NMSC-062, ¶ 17.
In defining the term ‘general law’ as used in the home rule amendment, this Court . . . attempt[ed] to impart the basic notion, applied across the country, that in order for a statute to override an enactment of a home rule municipality, the statute must relate to a matter of statewide concern.
{52} We hold that
{53} Kane contends that the employment relationships of hazardous duty officers are matters of general concern because “[a]s the members of the public served every
{54} We conclude that
2. Whether Section 10-7F-9 expressly denies the City the power to prohibit its employees from seeking elective office
{55} If a statute is a general law, we next inquire whether the provision expressly denies a home rule municipality the right to prohibit its employees from seeking elective office. Haynes, 1992-NMSC-062, ¶ 14. “[A]ny New Mexico law that clearly intends to preempt a governmental area [qualifies as an express denial] without necessarily stating that affected municipalities must comply and cannot operate to the contrary.” Id. ¶ 22 (internal quotation marks and citation omitted). Kane asserts that the City‘s employment regulations are preempted by
{56} We disagree. The HDOA contains no requirement for a uniform law concerning the proscription of hazardous duty officers’ political activities. See
{57} We conclude that the City correctly argues that “Article X, Section 3 of the City‘s home rule Charter falls within the HDOA‘s ‘except as otherwise provided by law’ exception” such that
{58} New Mexico generally follows the American rule, which provides that each party should bear its own attorney‘s fees unless a statute, court rule, or contractual agreement authorizes an award of attorney‘s fees. See Paz v. Tijerina, 2007-NMCA-109, ¶ 9, 142 N.M. 391, 165 P.3d 1167. The relevant statutory exception to the application of the American rule in this case is the Civil Rights Act,
{59} Pursuant to
{60} We disagree with Kane‘s position. When a case is actually litigated and a plaintiff does not win on any significant issue, that plaintiff is not a prevailing party within the meaning of
{61} The City‘s employment regulations do not violate the First Amendment of the United States Constitution. Also, these restrictions do not violate Article VII, Section 2 of the New Mexico Constitution. Moreover,
{62} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Justice
CHARLES W. DANIELS, Justice
SARAH C. BACKUS, Judge
Sitting by designation
RICHARD C. BOSSON, Justice, specially concurring
{63} We say in this opinion that the City of Albuquerque is not precluding Kane from holding elective office, only from holding city employment while she does so. The City is imposing a condition on employment, not on elective office. But is that really what is going on here? Kane, a career official in the fire department, has the “freedom” to run for office; all she has to do is walk away from her career. Some choice!
{64} It seems to me that the City‘s employee regulations, stripped of labels and pretense, are exactly what they appear to be. They are a public policy choice by the City to keep its employees away from politics and specifically away from running for office. That policy choice is rooted in history. The Legislature created the same wall for state employees a generation ago.
{65} I acknowledge that this very Court a generation ago characterized the State Personnel Act as a restriction on employment only, not on elected office. “No effort is being made to impose any restriction upon the elective public office which [the
{66} In truth, is this not a little of both, a condition on employment and a prohibition on holding elective public office? We do ourselves no harm with such an acknowledgment. Back in the 1960s, to lay the groundwork for the State Personnel Act (and by extension the Albuquerque City Charter), the Legislature and the electorate combined to amend
{67} The Constitution did not need amending just to pass a personnel act; it needed amending to pass a personnel act that restricted the right to hold elective public
{68} And so, Albuquerque‘s restrictions on its employees from holding elective public office are consistent with the New Mexico Constitution. I concede the point and agree with the result reached in the Court‘s opinion. Having conceded the legality of the City‘s position toward its employee, I could stop there. The wisdom of such a policy—its prudence as a matter of sound public policy—is a matter of legislative discretion, not judicial determination.
{69} But the history of our Constitution suggests that the two cannot always be neatly separated. Our state Founders created a volunteer legislature, one that envisioned public-minded citizens from all walks of life, those who would make the
{70} True to the spirit of those Founders, we as a society need those volunteers today more than ever. We need their talent, their energy, and their vision, all attributes that can be found in both sectors of our economy, public and private. The public sector is infinitely larger now than in the days of our founding. We should be wary of eliminating whole areas of our society from the potential gene pool from which our best and brightest might be called to Santa Fe. There must be better ways, designed with greater precision, to protect civil service from the excesses of political intrigue than an across-the-board, absolute ban. The City of Albuquerque has benefitted in the past from the service of its municipal employees in the state Legislature. Representative Kiki Saavedra is but one who comes to mind. The value of their continued service should, at very least, be subject to intelligent public debate. The stakes at hand, and our continued need for quality legislative service, merit no less.
RICHARD C. BOSSON, Justice
Notes
We note that the politicization of personnel decisions can damage employee morale and can be harmful to government efficiency. See Phillips v. City of Dallas, 781 F.3d 772, 780 (5th Cir. 2015); Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1314-15 (Fed. Cir. 2003). By contrast, employment regulations precluding government employees from holding or seeking elective office prevent the politicization of personnel decisions. See Phillips, 781 F.3d at 780; Briggs, 331 F.3d at 1314-15. Thus, whereas Murphy involved the politicization of a personnel decision, 505 F.3d at 451-52, in the case at bar, the City was merely attempting to implement provisions that preclude politicization within the government workforce. Kane‘s reliance on Murphy is therefore misplaced.
A subsequent 1973 amendment only affected Subsection C of
The Personnel Act was passed prior to September 19, 1961, when