New Mexico SC Rejects Right of Firefighter to Run for Elected Office

The New Mexico Supreme Court has rejected the claims of an Albuquerque fire captain that she has a First Amendment right to run for and hold elective office while remaining on the Albuquerque Fire Department.

Albuquerque fire captain Emily Kane ran for the New Mexico state legislature in 2011. The city notified her that running for office while employed as a city employee was prohibited, prompting her to file suit seeking a court order allowing her to run and hold office.


Kane alleged that: “that the employment regulations of the City of Albuquerque (the City) violate (1) the First and Fourth Amendments of the United States Constitution; (2) Article VII, Section 2 of the New Mexico Constitution; and (3) Section 10-7F-9 of the Hazardous Duty Officers’ Employer-Employee Relations Act”.

The district court granted Kane a permanent injunction and awarded her attorney’s fees, The city appealed the ruling to the New Mexico Court of Appeals, who in turn certified two questions to the New Mexico Supreme Court.

While the case was winding its way through the courts, Kane was elected to the state legislature and served one term from 2013-2014.

In a ruling issued last week, the NMSC reversed the district court, holding that the right to run for office is not a fundamental right like the right to vote. As such it is subject to a reduced level of constitutional scrutiny, often referred to as rational basis.

  • Under rational basis review, a law “need only be rationally related to a legitimate government purpose.”
  • The regulations under attack obviously eliminate the risk that the duties of elective office would impose conflicting demands on City employees; the City’s regulations are therefore a constitutional method of eliminating conflicting interests among public employees.
  • 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
  • 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 threatened her with disciplinary action after she notified her superiors that she was seeking elective office.
  • Utilizing the rationale in Pickering v. Board of Education… we determine the constitutionality of restrictions on the right to speak via a balancing test. We must decide “whether the speech at issue addresses a matter of public concern and if so, decid[e] the proper balance between the employee’s constitutional rights and the State’s interest as an employer in promoting efficient provision of public services.”
  • Most federal circuits have concluded that candidacy for office is a matter of public concern.
  • However, “the mere fact of candidacy [is] not constitutionally protected, [whereas] the expression of one’s political belief still [falls] under the ambit of the First Amendment.”
  • Laws that preclude government employees from a wide range of political activities have been upheld as constitutional;
  • These laws are justifiable because political activity may become a basis for the preferential treatment of employees, damage morale, and therefore impair government efficiency.
  • In conclusion, Kane’s right to speak on matters of public concern was not violated.

The court went on to reject Kane’s state law arguments as well.

Here is a copy of the ruling: Kane v Albuquerque

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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