 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: __________

 3 Filing Date: February 2, 2015

 4 NO. 33,362

 5 LEE EINER,

 6       Petitioner-Appellant,

 7 v.

 8 MELANIE Y. RIVERA,
 9 in her official capacity as
10 Clerk of San Miguel County,

11       Respondent-Appellee.


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


14 Brannen Law LLC
15 Daniel E. Brannen Jr.
16 Santa Fe, NM

17 for Appellant

18 Jesus L. Lopez, San Miguel County Attorney
19 Las Vegas, NM

20 for Appellee
 1                                       OPINION

 2 WECHSLER, Judge.

 3   {1}   We consider in this appeal whether San Miguel County is subject to the home

 4 rule charter process of the Home Rule Amendment, Article X, Section 6 of the New

 5 Mexico Constitution, and the Municipal Charter Act, NMSA 1978, §§ 3-15-1 to -16

 6 (1965, as amended through 1990). We hold that it is not, concluding that San Miguel

 7 County is not a “municipality” within the Municipal Charter Act or the Home Rule

 8 Amendment. We further conclude that our holding does not violate the constitutional

 9 equal protection rights of Petitioner Lee Einer. We affirm the district court’s denial

10 of a petition for mandamus.

11 BACKGROUND

12   {2}   The attorneys for Petitioner, a resident of San Miguel County, submitted a form

13 petition to Respondent Melanie Y. Rivera, the County Clerk, requesting that

14 Respondent approve the form of the petition for circulation to qualified electors. The

15 petition requested the San Miguel County Commission to appoint a charter

16 commission providing for the “home rule” government of the county. NMSA 1978,

17 Section 3-1-5 (2007) provides the procedure for approval of the form of a municipal

18 home rule petition that includes approval by a county clerk if the form meets specified

19 statutory requirements. Section 3-1-5(C).
 1   {3}   The San Miguel County attorney responded to the request, advising that

 2 Respondent declined to act on the petition because the petition seeking incorporation

 3 of the county and adoption of a charter was not authorized by law. After an additional

 4 exchange of letters between counsel, Petitioner filed a writ of mandamus, requesting

 5 that the district court issue (1) a declaratory judgment that San Miguel County is a

 6 “municipality” under the Municipal Charter Act and that the form of petition met the

 7 requirements of Section 3-1-5(C); and (2) a peremptory or alternative writ of

 8 mandamus, compelling Respondent to approve the petition.

 9   {4}   The parties filed stipulated findings of fact and proposed conclusions of law

10 and cross-motions for summary judgment. The district court denied Petitioner’s

11 motion, granted Respondent’s motion, and denied the petition for a writ. It stated that

12 San Miguel County was “not a municipality as contemplated in the Municipal Code

13 and Municipal Charter Act.”

14   {5}   On appeal, Petitioner argues, as he did in the district court, that (1) San Miguel

15 County is a municipality with authority to adopt a home rule charter under the

16 Municipal Charter Act; (2) San Miguel County is a municipality with authority to

17 adopt a home rule charter under the Home Rule Amendment; and (3) if San Miguel

18 County is not recognized as a municipality under the Municipal Charter Act and the

19 Home Rule Amendment, his right to local self-government would be infringed in


                                               2
 1 violation of the Equal Protection Clause of the Fourth Amendment of the United

 2 States Constitution and Article II, Section 18 of the New Mexico Constitution.

 3 MUNICIPAL CHARTER ACT

 4   {6}   The Home Rule Amendment was adopted in 1970. It permits the qualified

 5 electors of a municipality to adopt “in the manner provided by law” a charter for the

 6 exercise of legislative powers. N.M. Const. art. X, § 6(C), (D). The Legislature

 7 adopted the Municipal Charter Act the following year, providing the manner by

 8 which the Home Rule Amendment was to be carried out. See, e.g., § 3-15-2 (“The

 9 qualified electors of a municipality who wish to be governed pursuant to Article 10,

10 Section 6 of the constitution of New Mexico may adopt, amend or repeal a charter

11 pursuant to the Municipal Charter Act.”).

12   {7}   The Municipal Charter Act permits the qualified electors of a municipality to

13 petition for the adoption of a home rule charter. Section 3-15-4. It defines a

14 “municipality” to mean “any incorporated city, town, village or county, whether

15 incorporated under general act, special act or constitutional provision.” Section

16 3-15-3. Petitioner’s argument that the Municipal Charter Act provides San Miguel

17 County with the authority to adopt a home rule charter hinges on this definition.

18 Specifically, in order for Petitioner to be entitled to petition for a home rule charter,

19 San Miguel County must be an incorporated county, “incorporated under general act,


                                               3
 1 special act or constitutional provision.” Id. As a matter of statutory interpretation, we

 2 address Petitioner’s argument on appeal under de novo review. State v. Almanzar,

 3 2014-NMSC-001, ¶ 15, 316 P.3d 183. We interpret the Municipal Charter Act in

 4 order to fulfill its legislative intent. Griego v. Oliver, 2014-NMSC-003, ¶ 20, 316

 5 P.3d 865. In doing so, we first look to the language of the relevant statutes. Id. ¶ 21.

 6   {8}   Petitioner asserts that San Miguel County is an incorporated county by virtue

 7 of both a special act, Chapter 142, Section 1 of New Mexico Laws of 1923, codified

 8 at NMSA 1978, Section 4-25-1 (1923), and a general act, Chapter 1, Section 3 of

 9 New Mexico Laws of 1876, codified at NMSA 1978, Section 4-38-1 (1876). Section

10 4-25-1 created the county presently named San Miguel County and established its

11 geographic boundaries. See NMSA 1978, § 4-25-7 (1923) (changing the name of

12 Jefferson County to San Miguel County in 1923). A county is a subdivision of the

13 state. El Dorado at Santa Fe, Inc. v. Bd. of Cnty. Comm’rs of Santa Fe Cnty., 1976-

14 NMSC-029, ¶ 6, 89 N.M. 313, 551 P.2d 1360. It “possesses only such powers as are

15 expressly granted to it by the Legislature, together with those necessarily implied to

16 implement those express powers.” Id. Nothing in Section 4-25-1 incorporated San

17 Miguel County.

18   {9}   Section 4-38-1 states: “The powers of a county as a body politic and corporate

19 shall be exercised by a board of county commissioners.” Petitioner reads this statute


                                               4
 1 as establishing that a county in New Mexico is necessarily an incorporated county.

 2 But, a body “corporate” and an “incorporated” body are not the same for the purposes

 3 of defining a municipality under the Municipal Charter Act.

 4   {10}   The Municipal Charter Act specifically defines a “municipality” to include an

 5 “incorporated . . . county” as well as incorporated cities, towns, or villages. Section

 6 3-15-3. It specifies that a municipality may be incorporated under a “general act,

 7 special act or constitutional provision.” Id. Significantly, when the Legislature passed

 8 the Municipal Charter Act, the Municipal Code contained provisions for the

 9 incorporation of municipalities both generally and under special act. NMSA 1978,

10 §§ 3-2-1 to -9 (1965, as amended through 2013); NMSA 1978, §§ 3-3-1 to -4 (1965,

11 as amended through 1985). Both such procedures required petitions and elections.

12 Section 3-2-1, -5(E); Section 3-3-2, -3. In addition, at the time the Municipal Charter

13 Act was enacted, the New Mexico Constitution provided for the incorporation of

14 counties that are “less than one hundred forty-four square miles in area and ha[ve] a

15 population of ten thousand or more.” N.M. Const., art. X, § 5 (adopted in 1964). The

16 procedure for the incorporation of a county requires an election on a draft charter. Id.

17 Article X, Section 5 of the New Mexico Constitution grants a county incorporated

18 under its provisions the same powers constitutionally and statutorily granted to

19 municipalities. Id.


                                              5
 1   {11}   Other than Article X, Section 5, there is no New Mexico constitutional or

 2 statutory provision that “incorporates” a county. The Home Rule Amendment permits

 3 a “municipality” to adopt a charter and to exercise certain legislative powers. N.M.

 4 Const. art. X, § 6(D). The Municipal Charter Act treats an “incorporated” county as

 5 a municipality. But, the constitutional and statutory backdrop at the time the

 6 Legislature enacted the Municipal Charter Act indicates that the legislative intent in

 7 defining “municipality” to include an “incorporated” county was to embrace within

 8 the Home Rule Amendment a county that incorporated under Article X, Section 5

 9 and, thereby, acquired the same powers constitutionally and statutorily granted to

10 municipalities.

11   {12}   Section 4-38-1 states that a board of county commissioners has the authority

12 to exercise the powers of the county “as a body politic and corporate.” It was adopted,

13 along with the establishment of organized counties as bodies corporate and politic in

14 1876. 1876 N.M. Laws, ch. 1, §§ 1, 3. These statutes were enacted because, at that

15 time, there was “no general law for the incorporation of cities or towns, in which

16 powers of local administration are usually vested[,]” and the Territorial Legislature

17 did not want communities to “be without municipal government of some kind[.]”

18 Agua Pura Co. v. Mayor of Las Vegas, 1900-NMSC-002, ¶ 13, 10 N.M. 6, 60 P. 208.

19 These statutes recognize the counties as subdivisions of the territory, and later the


                                              6
 1 state, and, with that status as distinct entities, they may exercise powers necessary for

 2 their operation. In Section 4-38-1, the Territorial Legislature described a county’s

 3 powers as “corporate,” and, indeed, these powers resemble those of a corporation. See

 4 3 The Oxford English Dictionary 955 (2d ed. 1991 reprint) (defining “corporate

 5 county” as “a city or town with its liberties, which has been constituted a county of

 6 itself, independent of the jurisdiction of the historical county or shire in which it is

 7 situated”); The American Heritage Dictionary of the English Language 41 (5th ed.

 8 2011) (defining “corporate” in relevant part as “[o]f or relating to a corporative

 9 government or political system”). But neither Section 4-38-1 nor Section 4-25-1 is

10 an incorporation provision or indicates an intent of the Legislature to incorporate

11 counties. They do not provide any procedure for a county to incorporate or even to

12 acquire any powers. We consider incorporation to be a specific process that requires

13 specific legislative authority. See §§ 3-2-1 to -9; §§ 3-3-1 to -4 (specifying the

14 process for a municipality to incorporate); see also NMSA 1978, §§ 53-12-1 to -4

15 (1967, as amended through 2003) (specifying the process to form a business

16 corporation); NMSA 1978, §§ 53-8-30 to -33 (1975, as amended through 2003)

17 (specifying the process to form a nonprofit corporation). Section 4-38-1 is not an

18 indirect incorporation process.




                                               7
 1   {13}   Although we have appellate cases that have discussed Section 4-38-1 or its

 2 predecessor statute, they do not affect our analysis of the Municipal Charter Act. For

 3 example, in Board of Commissioners of Rio Arriba County v. Greacen, 2000-NMSC-

 4 016, ¶ 5, 129 N.M. 177, 3 P.3d 672, in considering whether a county had the authority

 5 to enact local traffic ordinances and retain collected penalty assessments, our

 6 Supreme Court noted Section 4-38-1 and recognized that the county was organized

 7 and exercised powers “as a body politic and corporate.” Nothing in Greacen

 8 addresses the incorporation of the county. Similarly, State ex rel. Dow v. Graham,

 9 1928-NMSC-022, ¶ 6, 33 N.M. 504, 270 P. 897, involving a challenge to a legislative

10 effort to abolish Catron County, merely recites that Catron County is a “body politic

11 and corporate”; it does not consider any issue regarding incorporation.

12   {14}   Our Supreme Court has also referred to counties as “municipal corporations.”

13 In Agua Pura, the issues involved a statute that limited actions questioning a

14 franchise granted by a municipal corporation to six years from the grant of the

15 franchise and deemed such franchises valid after the six-year period. 1900-NMSC-

16 002, ¶ 14. The plaintiff had entered a contract with the board of county

17 commissioners in 1880 that included supplying water within the county and to the

18 “town and city of Las Vegas.” Id. ¶¶ 10, 15. The Las Vegas city council sought to

19 regulate the plaintiff’s rates under an 1897 law that granted a city or town such


                                              8
 1 authority provided that existing contracts were not affected. Id. ¶ 9. The plaintiff

 2 sought an injunction against the city. Id. ¶ 4. The Court’s holdings included that the

 3 contract was not subject to question and “valid in all respects” because the plaintiff

 4 did not bring suit within the required time period. Id. ¶ 15. The Court treated the

 5 county as a “municipal corporation.” Id. ¶ 13.

 6   {15}   Mountain States Telephone & Telegraph Co. v. Town of Belen, 1952-NMSC-

 7 053, 56 N.M. 415, 244 P.2d 1112, involved a similar issue. The county

 8 commissioners of Valencia County had granted a franchise to the defendant to

 9 provide telephone service within the county in 1905. Id. ¶ 5. In 1949, the town of

10 Belen, which was incorporated in 1918, sought to require the defendant to accept a

11 franchise to operate within its corporate limits. Id. ¶¶ 1, 5. Our Supreme Court

12 discussed its Agua Pura opinion at length, in particular, its conclusions that the

13 county commissioners in Agua Pura had the power to grant a franchise to a public

14 utility as a “municipal corporation” and that the six-year limitation period for

15 challenging actions by a “municipal corporation” with respect to its grant of a

16 franchise applied. Mountain States, 1952-NMSC-053, ¶¶ 8-10.

17   {16}   In Mountain States, our Supreme Court described counties as “bodies corporate

18 and politic” and stated their powers to be both “corporate” and “administrative.” Id.

19 ¶ 6 (internal quotation marks and citation omitted). The Court, however, noted that


                                              9
 1 the Agua Pura Court did not examine, but merely assumed, that the Territorial

 2 Legislature intended a county to be included as a “municipal corporation” allowed in

 3 the 1893 statute to grant a utility franchise. Mountain States, 1952-NMSC-053, ¶ 8.

 4 And, it questioned the correctness of its prior conclusion in Agua Pura that a county

 5 was such a municipal corporation, stating:

 6                While the term “municipal corporation” is sometimes used, in its
 7          broader meaning, to include such public bodies as the state and each of
 8          the governmental subdivisions of the state,—such as counties, parishes,
 9          townships, hundreds, etc.,—it ordinarily applies only to cities, villages,
10          and towns which are organized as full-fledged public corporations.

11                 A county in a sense is a municipal corporation and sometimes is
12          classed as such; but strictly speaking a county is distinguishable from,
13          and is not, a municipal corporation.

14 Mountain States, 1952-NMSC-053, ¶ 8 (internal quotation marks and citations

15 omitted). The Court further noted that if the Agua Pura Court had examined the

16 meaning of the use of “municipal corporation” in the statute, “it might have reached

17 a different conclusion.” Mountain States, 1952-NMSC-053, ¶ 9. It nevertheless

18 followed Agua Pura because it had been “stare decisis in this [s]tate for more than

19 half a century.” Mountain States, 1952-NMSC-053, ¶ 10.

20   {17}   As we have discussed, the issue before us in this case is not whether San

21 Miguel is a body corporate or a municipal corporation under Section 4-38-1, but

22 rather whether it is an incorporated county under the Municipal Charter Act.


                                               10
 1 Although the Territorial Legislature designed counties to have corporate powers, and

 2 such powers have been used to broadly consider counties as “municipal

 3 corporations,” the Municipal Charter Act is specific in its use of the term

 4 “incorporated county.” Section 3-15-3. With this specificity, the Legislature did not

 5 intend to use the broader sense of corporate power discussed in Mountain States; it

 6 intended to include as “incorporated” counties only counties “organized as full-

 7 fledged corporations.” Mountain States, 1952-NMSC-053, ¶ 8 (internal quotation

 8 marks and citation omitted).

 9   {18}   Any other interpretation of the Municipal Charter Act would not make sense.

10 See Baker v. Hedstrom, 2012-NMCA-073, ¶ 12, 284 P.3d 400 (“It is fundamental that

11 statutes will be construed so that their application will be neither absurd nor

12 unreasonable.” (internal quotation marks and citation omitted)). Article X, Section

13 5 of the New Mexico Constitution provides the procedure for a county to become

14 incorporated, as well as the authority of an incorporated county, and restricts it to a

15 county with less than one hundred forty-four square miles in area and a minimum

16 population of ten thousand. Why would the Legislature pass such a constitutional

17 amendment for voter approval to permit incorporation of such a limited class of

18 counties of the state if it intended all counties of the state to be incorporated by their

19 statutory creation?


                                               11
 1   {19}   It is apparent that the Legislature took no such action. Its intent in passing the

 2 constitutional amendment to the voters was to limit incorporated counties to Los

 3 Alamos County. Petitioner does not dispute that Los Alamos County is the only

 4 county in the state that falls within the restrictions set forth in Article X, Section 5.

 5 This provision, adopted in 1964, was not the first to single out Los Alamos County

 6 from other counties. In 1955, the Legislature established the classification of H class

 7 counties, defined as “[a]ny county which covers an area of not more that 200 square

 8 miles.” NMSA 1978, § 4-44-3 (1985). (The record indicates that Los Alamos County

 9 has a total area of 109 square miles and San Miguel County a total area of 4736

10 square miles.) In 1965, with the adoption of the Municipal Code, Los Alamos County

11 was treated as a municipality. See NMSA 1978, § 3-1-2(G) (1993) (including

12 “incorporated counties” and “H class counties” within the definition of

13 “municipality”). The Municipal Code permitted municipalities to incorporate as a

14 municipality. Sections 3-2-1 to -9. Los Alamos County did so in 1968. Thus, in 1971,

15 when adopting the Municipal Charter Act and defining a “municipality” to include

16 “incorporated counties,” the Legislature was merely continuing its precedent

17 distinguishing Los Alamos County from other counties.

18   {20}   San Miguel County has no such history. It is not an “incorporated county”

19 under the Municipal Charter Act. Absent that status, it does not fall within the


                                                12
 1 definition of “municipality” and is not entitled to a home rule charter under the

 2 Municipal Charter Act.

 3 HOME RULE AMENDMENT

 4   {21}   Petitioner makes the alternative argument that “San Miguel County is a

 5 municipality with authority to adopt a home rule charter under the Home Rule

 6 Amendment.” He contends that the Home Rule Amendment is self-executing in that

 7 it provides that “[i]n the absence of law, the governing body of a municipality may

 8 appoint a charter commission upon its own initiative or shall appoint a charter

 9 commission upon the filing of a petition” of registered qualified electors. N.M. Const.

10 art. X, § 6(C).

11   {22}   According to Petitioner, if the Municipal Charter Act does not apply, there is

12 an “absence of law” that triggers the self-executing aspect of the Home Rule

13 Amendment. Petitioner thus proposes that the meaning of “municipality” in the Home

14 Rule Amendment, which is not specifically defined, can be defined independently of

15 the Municipal Charter Act to include San Miguel County based on the plain meaning

16 of “municipality.” We do not agree with Petitioner’s arguments.

17   {23}   First, we do not believe that it is appropriate to read the Home Rule

18 Amendment independently of the Municipal Charter Act. The Home Rule

19 Amendment specifically states that “registered qualified electors of a municipality


                                              13
 1 may adopt . . . a charter in the manner provided by law.” N.M. Const. art. X, § 6(C).

 2 The Municipal Charter Act is the law enacted to implement the Home Rule

 3 Amendment. In this manner, the interpretation of the Home Rule Amendment is

 4 dependent on, not independent of, the Municipal Charter Act. There is no “absence

 5 of law.”

 6   {24}   Second, even if the “municipality” in the Home Rule Amendment could be

 7 given a different interpretation from “municipality” as defined in the Municipal

 8 Charter Act, the plain meaning of “municipality” would not include a county.

 9 Petitioner points to the definition of “municipality” in Black’s Law Dictionary as

10 embracing the plain meaning of the term. Black’s Law Dictionary defines

11 “municipality” and “municipal corporation” as:

12          A city, town, or other local political entity formed by charter from the
13          state and having the autonomous authority to administer the state’s local
14          affairs; esp., a public corporation created for political purposes and
15          endowed with political powers to be exercised for the public good in the
16          administration of local civil government.

17 Black’s Law Dictionary 1113 (9th ed. 2009). Although certain aspects of this

18 definition may apply to a New Mexico county, the only county in the state that is

19 either formed by charter or is a corporation is Los Alamos County.

20   {25}   Petitioner additionally argues that the plain meaning of “municipality” as used

21 in the Home Rule Amendment includes counties because of the stated purpose of the


                                               14
 1 amendment “to provide for maximum local self-government[,]” Article X, Section

 2 6(E) of the New Mexico Constitution, and because it would be irrational to exclude

 3 counties other than Los Alamos. However, the purpose of the Home Rule

 4 Amendment is to provide maximum local self-government for “municipalities.” As

 5 we have discussed, except for Los Alamos, the counties of the state are not

 6 municipalities. While it may be an appropriate goal to have “maximum local self-

 7 government” at the county level, such intent was not encompassed within the Home

 8 Rule Amendment.

 9   {26}   Moreover, the difference between counties and municipalities is more than

10 mere geography, as Petitioner suggests. “Historically, [a] county was solely the

11 subdivision of the state, constituted to administer state power and authority.”

12 1 Eugene McQuillin, The Law of Municipal Corporations § 1:27, at 32 (3d ed. 2010).

13 “[C]ounties have been deliberately laid out, . . . [they] are artificial divisions created

14 to share in state government.” Id. § 1:25, at 26. Counties are formed by legislative act,

15 see NMSA 1978, §§ 4-1 to -32 (1876, as amended through 1981) (establishing the

16 boundaries of the counties in New Mexico), and are subdivisions of the state.

17 1 McQuillin § 1:27, at 32; El Dorado at Santa Fe, Inc., 1976-NMSC-029, ¶ 9.

18 Municipal corporations are “designed to promote the common interests of [their]

19 inhabitants . . . [are] representative of [their] citizens and taxpayers . . . [and are]


                                               15
 1 established for the advantage of . . . the public at large.” 1 McQuillin § 1:59, at 100.

 2 Municipalities are self-governing. See 1 McQuillin § 1:36, at 50 (“Generally,

 3 municipal corporations are self-governing[.]”). Unlike counties, they are formed by

 4 incorporation or charter. See § 3-1-2(G) (“‘[M]unicipality’ means any incorporated

 5 city, town or village, whether incorporated under general act, special act or special

 6 charter[.]”). Municipalities are governed by the Municipal Code, see NMSA 1978,

 7 §§ 3-1-1 to -66-11 (1965, as amended through 2014) (entitled, “Municipalities”),

 8 which is generally not applicable to counties. See NMSA 1978, §§ 4-1-1 to -62-10

 9 (1876, as amended through 2013) (entitled, “Counties”). Although there may be

10 certain overlap or parallel governing principles with respect to municipalities and

11 counties, and our courts have at times referred to municipalities and counties in a

12 common way, the two are not the same. See, e.g., City of Albuquerque v. New Mexico

13 Pub. Regulation Comm’n, 2003-NMSC-028, ¶ 3, 134 N.M. 472, 79 P.3d 297 (stating

14 that a municipality “is an auxiliary of the state government” and a county “is but a

15 political subdivision” of the state) (internal quotation marks and citation omitted),

16 see also 1 McQuillin § 2:54, at 283, 286 (“[Municipal Corporations] and counties

17 have been declared to be separate and distinct legal entities . . . . [T]he county is not,

18 strictly speaking, a municipal corporation[.]”); id. at 283 (“Counties are often

19 distinguished from municipal corporations in that counties are created without the


                                               16
 1 consent of the inhabitants, whereas the existence of municipal corporations ordinarily

 2 depends on the consent of the inhabitants.”). We conclude that San Miguel County

 3 is not a municipality for the purpose of the Home Rule Amendment.

 4 EQUAL PROTECTION

 5   {27}   Petitioner argues that “[f]ailure to include San Miguel County in the term

 6 ‘municipality’ under the Home Rule Amendment and the Municipal Charter Act

 7 would infringe [Petitioner’s] right to local self-government in a manner that violates

 8 the federal and state Equal Protection Clauses.” U.S. Const. amend XIV, § 1; N.M.

 9 Const. art. II, § 18. In other words, Petitioner argues that an interpretation of the

10 Home Rule Amendment and the Municipal Charter Act that fails to include all New

11 Mexico counties within the definition of “municipality” violates federal and New

12 Mexico equal protection guarantees because the residents of all counties except Los

13 Alamos are denied the possibility of a vote on whether to adopt county-based home

14 rule.

15   {28}   The right to equal protection under the law, both state and federal, affords a

16 guarantee that the government will treat similarly-situated individuals in an equal

17 manner. Breen v. Carlsbad Mun. Schs., 2005-NMSC-028, ¶ 7, 138 N.M. 331, 120

18 P.3d 413. Under equal protection analysis, the threshold inquiry is whether the

19 challenged legislation creates a class of similarly-situated persons who are treated


                                              17
 1 dissimilarly. Id. ¶ 10. Petitioner argues that, when read in combination, Sections 3-1-

 2 2(G), 3-15-3, 3-15-4, and Article X, § 5 of the New Mexico Constitution, allow

 3 citizens residing in incorporated cities, towns, villages, and Los Alamos County the

 4 potential for home rule but deny that potential to all others. For the purpose of this

 5 analysis, we assume without deciding that the combined effect of the statutes is to

 6 create a class of similarly-situated persons who are treated differently.

 7   {29}   The next step in an equal protection analysis is to determine the level of

 8 scrutiny that applies to the challenged legislation. Breen, 2005-NMSC-028, ¶ 11.

 9 Strict scrutiny, the standard of review least deferential to the Legislature, requires a

10 party defending a statute to “prove that the legislation furthers a compelling state

11 interest.” Griego, 2014-NMSC-003, ¶ 39. Strict scrutiny applies when statutes treat

12 a suspect class differently, or, generally, when statutes burden the exercise of

13 fundamental rights. Id. Fundamental rights include voting and interstate travel, among

14 others, and suspect classes include race and ancestry, among others. Marrujo v. N.M.

15 State Highway Transp. Dep’t, 1994-NMSC-116, ¶ 10, 118 N.M. 753, 887 P.2d 747.

16 Rational basis review is most deferential to the legislation. Under rational basis

17 review, the burden is on the party challenging the legislation in question to prove that

18 the legislation is not rationally related to a legitimate governmental purpose. Id.

19 Rational basis review applies to general social or economic legislation. Breen, 2005-


                                              18
 1 NMSC-028, ¶ 11. In between lies intermediate scrutiny. Intermediate scrutiny

 2 generally applies to statutes that affect a sensitive class of individuals, such as the

 3 mentally disabled. Griego, 2014-NMSC-003, ¶ 39. Intermediate scrutiny requires that

 4 the party defending the legislation prove a substantial relationship between the

 5 legislation and an important government interest. Id.

 6   {30}   Petitioner contends that we should apply strict scrutiny to the challenged

 7 legislation because the burdened right is fundamental. Petitioner argues that there is

 8 a fundamental right to local self-governance and, further, that the fundamental right

 9 is to the “utmost” local self-governance. Petitioner argues that this fundamental right

10 is burdened by the inability to vote for home rule, stating that only home rule

11 municipalities “have autonomy from state interference in matters of local concern,

12 power to control their own affairs, and the utmost ability to take policymaking

13 initiative.” Petitioner asserts that it is an equal protection violation for New Mexico

14 to “give the people of cities, towns, villages, and the county of Los Alamos the

15 utmost local autonomy, control, and policymaking initiative while depriving the

16 people of the other counties of the same local power.”

17   {31}   In support of his argument, Petitioner cites the Declaration of Independence

18 para. 2 (U.S. 1776) (“Governments . . . deriv[e] their just powers from the consent of

19 the governed.”); the Ninth and Tenth Amendments of the United States Constitution


                                             19
 1 (“The enumeration in the Constitution of certain rights shall not be construed to deny

 2 or disparage others retained by the people” and “[t]he powers not delegated to the

 3 United States by the Constitution, nor prohibited by it to the States, are reserved to

 4 the States respectively, or to the people,” respectively); the Enabling Act for New

 5 Mexico of 1910 (stating that the New Mexico Constitution “shall not be repugnant

 6 to . . . the principles of the declaration of independence”); Article II, Section 2 of the

 7 New Mexico Constitution (“All political power is vested in and derived from the

 8 people: all government of right originates with the people, is founded upon their will

 9 and is instituted solely for their good.”); and Article II, Section 3 of the New Mexico

10 Constitution (“The people of the state have the sole and exclusive right to govern

11 themselves as a free, sovereign and independent state.”). These authorities seem to

12 establish a broad right to political power and self-government, but, even assuming

13 that there is a local dimension to that right, we do not recognize in these authorities

14 a fundamental right to the utmost local control and autonomy as asserted by

15 Petitioner.

16   {32}   Petitioner also cites a number of cases in support of his contention that the

17 right burdened is fundamental and so demands strict scrutiny under equal

18 protection analysis. These cases are unpersuasive in this context. Petitioner cites

19 Griffin v. County School Board of Prince Edward County, noting that the United

                                               20
 1 States Supreme Court did not allow a county in Virginia to de-fund and keep

 2 closed its public schools for the ultimate purpose of maintaining segregated

 3 education. 377 U.S. 218, 222-23, 225 (1964). Griffin was grounded in federal

 4 equal protection analysis, holding that:

 5               A [s]tate, of course, has wide discretion in deciding whether
 6        laws shall operate statewide or shall operate only in certain
 7        counties, the legislature having in mind the needs and desires of
 8        each. . . . [But w]hatever nonracial grounds might support a [s]tate’s
 9        allowing a county to abandon public schools, . . . grounds of race
10        and opposition to desegregation do not qualify as constitutional.

11 Id. at 231 (internal quotation marks and citation omitted). This language

12 suggests an equal protection analysis not based on a fundamental right, as

13 Petitioner contends, but, instead, on race as a suspect class. Because Petitioner

14 does not argue that there is an issue in this case that relates to race or any other

15 suspect class, and because Griffin does not address fundamental rights, Griffin

16 is not persuasive.




                                            21
 1   {33}   The other cases cited by Petitioner are similarly off-point. 1 Mere reference to

 2 cases in which a court applied strict scrutiny to an infringement of a fundamental

 3 right, such as the right to vote, that is unrelated to the right Petitioner would have us

 4 recognize, fails to persuade us that we should apply strict scrutiny in this case. Nor

 5 are we persuaded by cases cited by Petitioner that invalidate statutes or constitutional

 6 provisions as violations of equal protection without reference to a standard of review

 7 or reference to whether the right in question was fundamental.2

 8   {34}   We conclude that rational basis review is appropriate in this case. There is no

 9 fundamental right that is violated by a statutory and constitutional scheme that allows

10 the residents of Los Alamos County to engage in county-based home rule while

11 residents of other counties cannot. As the United States Supreme Court noted in

12 Griffin, 377 U.S. at 231, “there are reasons why one county ought not to be treated


            1
13           Petitioner cites to, for example, Kramer v. Union Free School District No. 15,
14   395 U.S. 621, 622, 628 (1969) (evaluating a statute that limited the right to vote in
15   certain New York school districts under “exacting judicial scrutiny”) and Brown v.
16   Entertainment Merchants Ass’n, 131 S.Ct. 2729, 2738 (2011) (evaluating a statute
17   that restricted the content of protected speech under strict scrutiny).
            2
18            For example, Board of Education of the Village of Cimarron v. Maloney,
19   1970-NMSC-146, ¶¶ 5, 8, 82 N.M. 167, 477 P.2d 605 (invalidating a provision of the
20   New Mexico Constitution requiring ownership of real property as a prerequisite to
21   voting on the creation of bond debt but without reference to a standard of scrutiny or
22   fundamental rights) and Nixon v. Condon, 286 U.S. 73, 81, 89 (1932) (invalidating
23   as a violation of the equal protection clause a law preventing non-whites from voting
24   in primary elections in Texas).

                                               22
 1 like another,” and the nature of the legislative function is to draw lines that “leave[]

 2 some out that might well have been included.” Trujillo v. City of Albuquerque, 1998-

 3 NMSC-031, ¶ 28, 125 N.M. 721, 965 P.2d 305 (quoting Vill. of Belle Terre v. Boraas,

 4 416 U.S. 1, 8 (1974)). Under rational basis scrutiny, the burden falls on Petitioner “to

 5 prove that the legislation is not rationally related to a legitimate governmental

 6 purpose.” See Griego, 2014-NMSC-003, ¶ 39 (stating that under rational basis

 7 scrutiny the burden is on the party challenging the legislation to prove that statute is

 8 not rationally related to a legitimate governmental purpose). Petitioner has not

 9 constructed such an argument, instead relying solely on the argument that strict

10 scrutiny is appropriate. We note that San Miguel County is more than forty times as

11 large as Los Alamos County. It is a rational policy choice for the Legislature and the

12 people of New Mexico to treat Los Alamos County differently from other counties

13 on the basis of its size and its unique history and characteristics. Under rational basis

14 review, the legislative scheme challenged by Petitioner does not violate equal

15 protection guarantees under the United States or New Mexico Constitutions.

16   {35}   CONCLUSION

17   {36}   For the foregoing reasons, we affirm the district court’s denial of a petition for

18 mandamus.




                                                23
1   {37}   IT IS SO ORDERED.


2                                         ________________________________
3                                         JAMES J. WECHSLER, Judge


4 WE CONCUR:


5 ________________________________
6 MICHAEL D. BUSTAMANTE, Judge


7 ________________________________
8 RODERICK T. KENNEDY, Judge




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