164 P.3d 958 (N.M.App. 2007), 26,143, American Civil Liberties Union v. City of Albuquerque

Docket Nº:26,143.
Citation:164 P.3d 958, 142 N.M. 259, 2007-NMCA-92
Opinion Judge:ALARID, Judge.
Party Name:AMERICAN CIVIL LIBERTIES UNION of New Mexico and Peter G. Simonson, Plaintiffs-Appellees, v. CITY OF ALBUQUERQUE, Defendant-Appellant.
Attorney:ACLU of New Mexico, George Bach, Ousama M. Rasheed Law Office, Ousama M. Rasheed, Revo Law Firm, Roger I. Smith, Kennedy & Han P.C., Paul J. Kennedy, Albuquerque, NM, for Appellees. City of Albuquerque Legal Department, Robert M. White, City Attorney, Peter Pierotti, Assistant City Attorney, Albu...
Judge Panel:WE CONCUR: JONATHAN B. SUTIN, Chief Judge, and IRA ROBINSON, Judge.
Case Date:May 02, 2007
Court:Court of Appeals of New Mexico
 
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Page 958

164 P.3d 958 (N.M.App. 2007)

142 N.M. 259, 2007-NMCA-92

AMERICAN CIVIL LIBERTIES UNION of New Mexico and Peter G. Simonson, Plaintiffs-Appellees,

v.

CITY OF ALBUQUERQUE, Defendant-Appellant.

No. 26,143.

Court of Appeals of New Mexico

May 2, 2007

Certiorari Granted, No. 30,415, July 20, 2007.

Page 959

[Copyrighted Material Omitted]

Page 960

ACLU of New Mexico, George Bach, Ousama M. Rasheed Law Office, Ousama M. Rasheed, Revo Law Firm, Roger I. Smith, Kennedy & Han P.C., Paul J. Kennedy, Albuquerque, NM, for Appellees.

City of Albuquerque Legal Department, Robert M. White, City Attorney, Peter Pierotti, Assistant City Attorney, Albuquerque, NM, for Appellant.

OPINION

ALARID, Judge.

¶1 Defendant City of Albuquerque (the City) appeals the trial court's decision issuing a permanent injunction enjoining the City from enforcing Ordinance Bill No. O-05-113 (the Ordinance). The trial court determined that the Ordinance is unconstitutional and denied various motions filed by the City, including a motion to dismiss the case due to lack of standing by Plaintiffs. We hold that Plaintiffs did not have standing to challenge the Ordinance in this case. Based on the lack of standing, the trial court's decision is reversed, and the permanent injunction is dissolved.

BACKGROUND

¶2 The ACLU, along with two named Plaintiffs, filed a complaint for injunctive and declaratory relief asking that the Ordinance be declared unconstitutional and that a permanent injunction be issued preventing the City from enforcing the Ordinance. In its complaint, the ACLU alleged that it had "standing to vindicate the public interest in matters of great public interest and importance," and to "vindicate the interest of its members who will be subject to [the Ordinance], and whose rights, status or other legal relations are affected by [the Ordinance]." One of the two named Plaintiffs was dismissed by stipulation. The remaining Plaintiff, Peter Simonson, is the executive director and a member of the New Mexico ACLU. The ACLU and Mr. Simonson are referred to in this opinion as Plaintiffs.

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¶3 The challenged Ordinance includes a section titled, Vehicle Nuisance, and sets out procedures for seizure, forfeiture, or immobilization of vehicles that are declared to be a nuisance. Section 7-6-2 of the Ordinance, pertaining to Vehicle Nuisance, states:

A motor vehicle is hereby declared to be a nuisance and subject to immediate seizure and forfeiture pursuant to the provisions of this article if it is:

(A) Operated by a person who has been arrested for an offense of driving under the influence of intoxicating liquor or drugs, and/or

(B) Operated by a person whose license is suspended or revoked as a result of conviction for driving while intoxicated or suspended or revoked as a result of a driving while intoxicated arrest.

Section 7-6-4 of the Ordinance provides that a motor vehicle that has been declared a "vehicle nuisance" is subject to "temporary seizure or permanent forfeiture." Section 7-6-5 describes the procedure for forfeiture of a motor vehicle seized under the Ordinance. Notice of forfeiture is served on the person from whom the vehicle was seized and mailed postage pre-paid to the lawfully registered owner of the vehicle. The owner may request a hearing, and, within twenty days of the request for hearing, a hearing is set at which it will be determined whether there was probable cause to seize the vehicle. Section 7-6-6 provides that an officer may offer the vehicle owner an opportunity to request the alternative of immobilization of the vehicle, and outlines the procedure for immobilization of a temporarily seized motor vehicle.

¶4 Among various pleadings filed by the parties below, the City filed a motion to dismiss for lack of standing and Plaintiffs filed a motion for permanent injunction. The City's motion was denied. The trial court granted Plaintiffs' motion for permanent injunction based on a finding that the Ordinance provides insufficient procedural due process because it states, a "city hearing officer shall only determine whether the law enforcement officer had probable cause to seize the vehicle, " rather than determine whether there was probable cause for arrest. The City appealed that decision.

DISCUSSION

¶5 The challenged Ordinance in this case is an amended version of the ordinance discussed in City of Albuquerque v. One (1) 1984 White Chevy Ut., 2002-NMSC-014, ¶ 19, 132 N.M. 187, 46 P.3d 94, which allowed civil forfeiture of vehicles driven by "repeat offenders" of driving while intoxicated (DWI) who were "driving on a suspended or revoked drivers license." The Ordinance, as amended, pertains to vehicle nuisances and forfeiture of vehicles operated by persons merely arrested for the suspicion of DWI, in addition to the repeat offenders targeted in the previous version. The Ordinance became effective on May 11, 2005, and the ACLU filed its complaint on that same day. The Ordinance has never been enforced as amended. As discussed in this opinion, we reverse the trial court's decision and hold that Plaintiffs lacked standing to challenge the Ordinance. Because we decide that Plaintiffs do not have standing to challenge the Ordinance, we do not address arguments made by the parties that pertain to the merits of the case.

1. Standard of Review

¶6 On review of the denial of a motion to dismiss, we accept all of the material allegations in the complaint as true, and we construe the complaint in favor of Plaintiffs. See Forest Guardians v. Powell, 2001-NMCA-028, ¶ 5, 130 N.M. 368, 24 P.3d 803. Standing involves a question of law, which we review de novo. Id. The determination of standing prevents improper plaintiffs from bringing suit by focusing on the parties filing a complaint, and does not involve the examination of the issues or the merits of a case. See De Vargas Sav. & Loan Ass'n v....

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