Legislators file lawsuit against VC county clerk


Fifteen Republican state lawmakers have filed a lawsuit against the Valencia County clerk, alleging she has usurped the powers of the Legislature by issuing marriage licenses to same-sex couples.

On Aug. 28, Valencia County Clerk Peggy Carabajal began issuing licenses to same-sex couples.

Carabajal said Tuesday morning she had not been served with a copy of the lawsuit and could not offer comment on the arguments made in the filing.

Last month, the clerk said she based her decision to issue the licenses partially on the New Mexico Constitution.

Article II, Section 18 of the New Mexico Constitution covers due process, equal protection and sex discrimination.

It reads, “No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection under the laws. Equality of rights under law shall not be denied on account of the sex of any person.”

Carabajal was the second clerk in the state to issue same-sex licenses this year without a court order, following Doña Ana County Clerk Lynn Ellins’ decision to begin handing out marriage licenses to gay and lesbian couples on Aug. 21.

The lawmakers’ petition argues that the Legislature has the sole power and authority to enact state laws.

The petition goes on to say the interests of the legislators and the state are “irreparably harmed when local public officials act outside the scope of their authority and whey their conduct does not comply with the law.”

Carabajal has, according to the filing, violated the state constitution’s separation of powers doctrine by determining which laws he [sic] will enforce based upon his [sic] interpretation of the statutes and constitution, acted without having the authority to rule on the constitutionality of state statutes and is attempting to interfere with the powers reserved to the Legislature.

The petition notes that this filing is about the authority of the clerk and does not impact the ability of others to challenge New Mexico’s marriage laws.

Carabajal is trying to regulate an area of law governed by the state, not one that is governed by county governments, the petition argues.

The filing asks the courts to stop Carabajal from continuing to issue the same-sex licenses, and to find that all licenses issued to gay and lesbian couples and all marriages solemnized using those licenses be declared invalid.

In hopes of getting a uniform statewide ruling on gay marriage from the Supreme Court, an association representing county clerks statewide — Democrats and Republicans — plans to appeal an Albuquerque judge’s ruling last month that said it was unconstitutional to deny marriage licenses to same-sex couples.

So far, eight counties in New Mexico are issuing same-sex marriage licenses. Doña Ana, Valencia and San Miguel county clerks began issuing the licenses on their own, while Bernalillo, Santa Fe, Los Alamos, Taos and Grant counties are doing so under court orders.

Republican members of the New Mexico House of Reps. Jimmie Hall, Dennis Roch, James Strickler, Yvette Harrell, David Gallegos, Jason Harper, Anna Crook, Larry Larranaga, Paul Bandy, Sharon Chlachillage, Nora Espinoza and Bob Wooley, and New Mexico Sens. William Sharer, Steve Neville and Pat Woods are named as the petitioners in the petition for immediate stay.

Those same 15 lawmakers have filed suits against the clerks in San Miguel and Taos counties, while seven of them have filed against the clerk in Doña Ana County.

According to the online filing summaries, the other three petitions appear to be same as the one filed against Carabajal.

A hearing in the case, which is assigned to District Court Judge William Sanchez, hasn’t been scheduled.

-- Email the author at jdendinger@news-bulletin.com.