Rodriguez, 032015 NMAGO, IAL 03202015

• Case Date: March 20, 2015
• Court: New Mexico

The Honorable Nancy Rodriguez IAL 03202015 New Mexico Attorney General Opinion Attorney General of New Mexico March 20, 2015           HECTOR H. BALDERAS Attorney General           ELIZABETH A. GLENN Chief Deputy Attorney General          The Honorable Nancy Rodriguez          New Mexico State Senator          1838 Camino La Canada          Santa Fe, N.M. 87501          Re: Opinion Request - Limits on Taxes Imposed by Home Rule Municipalities          Dear Senator Rodriguez:          You requested our advice regarding whether home rule municipalities are permitted to impose taxes without a specific grant of authority from the legislature. Specifically, you asked:

Can a home rule municipality impose a tax on items (i.e. telecommunications services, Styrofoam use tax, plastic bottle use tax, carbon emission tax or plastic bag use tax) that are not expressly prohibited from being taxed pursuant to state law?

         As discussed below, we conclude that a home rule municipality may not impose taxes unless specifically authorized to do so by the legislature.          The New Mexico Constitution provides home rule municipalities with broad legislative authority. "A municipality which adopts a charter may exercise all legislative powers and perform all functions not expressly denied by general law or charter." N.M. Const, art. X, § 6. The New Mexico Supreme Court determined that this constitutional amendment means "a home rule municipality no longer has to look to the legislature for a grant of power to act, but only looks to legislative enactments to see if any express limitations have been placed on their power to act." Apodaca v. Wilson, 1974-NMSC-071, ¶ 14, 86 N.M. 516, 521.          Based on our research, we believe that the legislature has effectively limited the authority of a home rule municipality to impose taxes by general law. Two statutory provisions are of particular significance. First, the Municipal Charter Act, NMSA 1978, §§ 3-15-1 to -16 (1965, as amended through 1990), provides, in pertinent part, that a...