NMAGO 04-03.

• Case Date: May 14, 2004
• Court: New Mexico

New Mexico Attorney General Opinions 2004. NMAGO 04-03. May 14, 2004OPINION OF PATRICIA A. MADRID Opinion No. 04-03By: Elizabeth A. Glenn Assistant Attorney General To: The Honorable Gail C. Beam State Representative425 Aliso Drive NE Albuquerque, NM 87108 QUESTION: Is a 2003 amendment to the Human Rights Act that makes it unlawful to discriminate based on sexual orientation or gender identity subject to referendum under Article IV, Section 1 of the New Mexico Constitution?CONCLUSION: No. As a valid exercise of the state's police power, the 2003 amendment is excepted from the constitution's referendum authority. FACTS: In 2003, the New Mexico legislature passed an amendment to the Human Rights Act that prohibited discrimination based on sexual orientation or gender identity in certain areas, including employment and housing. See 2003 N.M. Laws, ch. 383, codified at NMSA 1978, §§ 28-1-2, 28-1-7, 28-1-7.2, 28-1-9 ("Chapter 383").(fn1) Shortly after it was enacted, opponents of the amendment began organizing a petition drive for disapproval of the amendment under the referendum process governed by Article IV, Section 1 of the New Mexico Constitution. Proponents of the amendment then questioned whether the amendment was properly subject to a referendum vote, or what is termed "referable," in light of Article IV, Section 1's exception for "laws providing for the preservation of the public peace, health or safety." DISCUSSION: In pertinent part, Article IV, Section 1 provides: The people reserve the power to disapprove, suspend and annul any law enacted by the legislature, except ... laws providing for the preservation of the public peace, health or safety.... The New Mexico Supreme Court has long held that "laws providing for the preservation of the public peace, health or safety" excepted from the constitutional referendum authority represent an exercise of the state's inherent police powers. SeeState ex rel. Hughes v. Cleveland, 47 N.M. 230, 242-43, 141 P.2d 192 (1943) ("Cleveland") (holding that a statute imposing an excise tax on cigars and cigarettes and allocating the proceeds of the tax to old age assistance was an act providing for the preservation of public health, and thus exempt from popular referendum under N.M. Const. art. IV, § 1). If a law can "be sustained as a reasonable exercise of the police power...