New Mexico independent adjudication.

Author:Franchini, Gene E.
Position::State Constitutional Commentary

    The New Mexico Supreme Court has been called upon a number of times in the last four or five years to interpret its state constitution. The New Mexico Constitution varies in a number of respects from the United States Constitution, both in wording, phrasing, and the number and nature of the rights accorded the people of New Mexico.(1) The New Mexico Bill of Rights has twenty-four separate provisions not present in the United States Constitution, including an Equal Rights Amendment and a Victim's Rights Amendment.(2)

    New Mexico's right to bear arms provision is considerably different from the provision in the Federal Constitution. The U. S. Constitution provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."(3) In contrast, the New Mexico Constitution provides:

    No law shall abridge the right of the citizen to keep and bear

    arms for security and defense, for lawful hunting and recreational

    use and for other lawful purposes, but nothing herein

    shall be held to permit the carrying of concealed weapons.

    No municipality or county shall regulate, in any way, an incident

    of the right to keep and bear arms.(4)

    Over the last four years, the Supreme Court of the State of New Mexico has refined and developed its method and process of interpreting New Mexico law vis-a-vis federal constitutional law.(5)

    Opinions of appellate courts across the nation interpret and apply their state constitutional law to the facts of the particular case before them, but some of these opinions have the advantage of also being teaching opinions.(6)

    One such opinion from the Supreme Court of the State of New Mexico is State v. Gomez.(7) Justice Richard Ransom authored the opinion and it may be his permanent legacy to the process, development, and interpretation of New Mexico's state constitutional law. Perhaps it will be his legacy to the process, development, and interpretation of state constitutions across the country.

    The Gomez case involved the search and seizure of an automobile without a warrant under exigent circumstances.(8) The New Mexico Court of Appeals, in an unpublished opinion, affirmed the conviction of Gomez, holding that, in the trial court, the defendant had failed to prove "the search invalid under Article II, Section 10 of the New Mexico Constitution."(9) That section "proscribes unreasonable searches and seizures and requires specificity and probable cause for warrants, even if permitted under the virtually same Fourth Amendment to the United States Constitution."(10) The Supreme Court of New Mexico granted certiorari for two reasons: to determine, first, how an unreasonable search and seizure claim under the New Mexico Constitution is preserved for appellate review, and, second, when the state can conduct a warrantless search of an automobile.(11)

    These questions brought to the court's attention the more interesting question of how the Supreme Court of New Mexico would proceed with independent constitutional interpretation not only in this case, but in the future. The opinion sets forth the court's preference for the interstitial method of state constitutional adjudication and the reasons underlying that preference.(12) The following brief discussion of the history of state constitutional adjudication in New Mexico will serve as background to illustrate the importance of the Gomez opinion.


    Early in the century and continuing for several decades thereafter, the Supreme Court of New Mexico interpreted its constitution lockstep(13) with federal precedent interpreting similar provisions of the U.S. Constitution.(14) However, the Gomez opinion noted that in State ex rel. Serna v. Hodges,(15) the court considered the constitutionality of the death penalty and asserted its independence, stating:

    [T]he states have inherent power as separate sovereigns in

    our federalist system to provide more liberty than is mandated

    by the United States Constitution:

    We [consider Article II, Section 13 of the New Mexico Constitution]

    as the ultimate arbiters of the law of New Mexico.

    We are not bound to give the same meaning to the New

    Mexico Constitution as the United States Supreme Court

    places upon the United States Constitution, even in construing

    provisions having wording that is identical, or

    substantially so, "unless such interpretations purport to

    restrict the liberties guaranteed the entire citizenry under

    the federal charter."

    Though at the time of Hodges no result had been altered by

    an analysis of the state constitution, more recently a right

    not protected under the federal constitution has been protected

    under the state constitution.(16)

    The increasing reliance on the state constitution is shown by the fact that between 1989 and 1994, the Supreme Court of New Mexico decided four cases interpreting and applying New Mexico state constitutional law protecting rights under it that were not protected under the federal charter.(17)


    The Gomez opinion recognizes that "[c]ommentators classify the interpretation of state constitutions as lock-step, primacy, or interstitial."(18) As I have stated, New Mexico no longer follows the lockstep approach.(19) When analyzing under the primacy approach, "`[i]f a defendant's rights are protected under state law, the court need not examine the federal question. If a defendant's rights are not protected under state law, the court must review the matter in light of the federal constitution.'"(20) The high courts of Maine, New Hampshire, Oregon, and Washington have followed this approach.(21)

    "Utilizing the interstitial approach, the court asks first whether the right being asserted is protected under the federal constitution. If it is, then the state constitutional claim is not reached. If it is not, then the state constitution is examined.(22) Gomez explains that a state court adopting the interstitial approach "may diverge from federal precedent for three reasons: a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics."(23)

    The Supreme Court of New Mexico abandoned the lockstep approach in favor of the interstitial approach to "provid[e] broader protection where we have found the federal analysis unpersuasive either because we deemed it flawed,"(24) as in Campos II,(25) inapplicable because of structural differences between our state government and the federal government, as in State v...

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