Aclu of Nm v. City of Albuquerque
| Decision Date | 18 May 2006 |
| Docket Number | No. 24,320.,No. 24,805.,24,320.,24,805. |
| Citation | 137 P.3d 1215,2006 NMCA 078 |
| Parties | AMERICAN CIVIL LIBERTIES UNION OF NEW MEXICO, and John Does 1-6, Plaintiffs-Appellees, v. CITY OF ALBUQUERQUE, Defendant-Appellant. American Civil Liberties Union of New Mexico, and John Does 1-5, Plaintiffs-Appellants, v. City of Albuquerque, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Cooperating Attorneys for New Mexico Civil Liberties Foundation, Albuquerque, NM, Melissa Hill, Corrales, NM, for American Civil Liberties Union of New Mexico.
Robert M. White, City Attorney, Gregory S. Wheeler, Michael I. Garcia, Assistant City Attorneys, Albuquerque, NM for City of Albuquerque.
{1} We consolidate the appeals of two cases brought by the American Civil Liberties Union (ACLU) and John Does, challenging the City of Albuquerque's sex offender ordinances on the grounds that the ordinances violate the New Mexico and Federal Constitutions. We decline to address the issues raised in the older of the cases involving the City's Sex Offender Alert Program (SOAP) because they are moot following the passage of a new state law. In the second case, we affirm the district court's decision finding various provisions of the Albuquerque Sex Offender Registration and Notification Act (ASORNA) unconstitutional and upholding the remainder of the ordinance. We hold additional registration provisions not specifically addressed by the district court to be unconstitutional.
{2} The City of Albuquerque drafted SOAP in response to a directive by the Mayor to draft an ordinance designed to close asserted loopholes in the statewide Sex Offender Registration and Notification Act, NMSA 1978, §§ 29-11A-1 to -8 (2000) (amended 2005) (SORNA). The City Council responded with the adoption of SOAP, Council Bill No. O-03-92. SOAP contained both registration and notification provisions that were broader in scope than the provisions of SORNA. SOAP also contained additional provisions that prohibited offenders from residing within a certain distance of a school, or being alone with children other than their own. The ACLU challenged SOAP, alleging violations of the New Mexico Constitution and seeking a permanent injunction. The district court found that SOAP's notification provisions, and its limitations on where an offender may live, violated procedural due process. The district court further held that the invalid provisions could not be severed without rendering SOAP incapable of accomplishing its legislative purpose, and therefore enjoined SOAP in its entirety. The City appealed.
{3} The City subsequently repealed SOAP and enacted a revised sex offender registration and notification ordinance, ASORNA, while the SOAP appeal was pending before this Court. ASORNA attempted to remedy the problems that rendered SOAP unconstitutional. Following the adoption of ASORNA, the ACLU challenged the new ordinance, on grounds similar to its prior challenge, and further argued that state law preempts ASORNA. The district court held that ASORNA is not preempted by state law. In addressing the ACLU's constitutional challenges to ASORNA, the district court held that the registration requirements for non-New Mexico residents, and the "Alone With a Child" provision, violate equal protection, and the "sex offender location" limitations violate due process. The district court severed these provisions from ASORNA, denied the ACLU's request for a stay while this appeal was pending, and allowed the ordinance to go into effect. The ACLU appealed.
{4} While this second appeal was pending before this Court, the State Legislature adopted House Bill 165,1 which contained amendments to SORNA. HB 165 provided that the revisions to SORNA were prospectively applicable as of the effective date of the statute, July 1, 2005. HB 165 contains a State Preemption and Savings Clause, Section 29-11A-9, which preempts the field of sex offender registration and notification, but allows existing ordinances that do not conflict with SORNA to remain in effect until they are repealed. This Court permitted supplemental briefing by the parties to address the effects of HB 165 on the pending ASORNA litigation.
{5} After a review of the records in both the SOAP and ASORNA litigation, we consolidated the appeals and hold as follows. We decline to address the issues raised in the SOAP litigation because the Preemption and Savings Clause of HB 165 prohibits the re-enactment of SOAP, and therefore the issues became moot when SOAP was repealed by the City Council. With respect to ASORNA, we hold that state law does not preempt ASORNA. In regards to the constitutional challenges to ASORNA, we affirm the district court's ruling that (1) the registration provisions for non-residents violate equal protection; (2) the "sex offender location" limitations as modified by the district court, also challenged on due process grounds, are constitutional; (3) the Alone With a Child provision violates equal protection. We also hold that the notification provisions, challenged on due process grounds, are constitutional; ASORNA is not punitive, and therefore does not violate ex post facto, double jeopardy, or cruel and unusual punishment protections. The registration requirements for the offenses of kidnaping and false imprisonment, without any indication of sexual motive, violate substantive due process. Furthermore, we hold that the registration requirements allowing the Albuquerque Police Department (APD) to collect DNA samples and dental imprinting violate search and seizure protections. We begin with a brief discussion of our holding that the appeal in SOAP is moot. We then turn to ASORNA.
{6} We decline to address the issues raised on appeal in regards to SOAP because HB 165 effectively prohibited the reenactment of SOAP once it was repealed. HB 165 prohibits the enactment of sex offender ordinances not in effect on January 18, 2005. The bill provides:
A. The state preempts the field of sex offender registration and notification. Cities, counties, home rule municipalities and other political subdivisions of the state are prohibited from adopting or continuing in effect any ordinance, rule, regulation, resolution or statute on sex offender registration and notification.
B. After January 18, 2005, cities, counties, home rule municipalities and other political subdivisions of the state are prohibited from adopting or amending an ordinance, rule, regulation or resolution on sex offender registration and notification. An ordinance in effect on January 18, 2005 shall continue in force and effect until repealed; provided that the ordinance shall only continue in force and effect with regard to sex offenders who are required to register pursuant to the provisions of the ordinance, but who are not required to register pursuant to the provisions of the Sex Offender Registration and Notification Act. All other sex offenders shall register pursuant to the provisions of the Sex Offender Registration and Notification Act.
{7} The repeal of SOAP, followed by the enactment of HB 165 renders SOAP moot. The doctrine of mootness "is a limitation upon jurisdiction or decrees in cases where no actual controversy exists." Mowrer v. Rusk, 95 N.M. 48, 51, 618 P.2d 886, 889 (1980). "[A]n action will be dismissed if the issues . . . become moot." Id. "We must review the judgment of the [d]istrict [c]ourt in light of [the] law as it now stands, not as it stood when the judgment below was entered." Diffenderfer v. Cent. Baptist Church of Miami, Fla., Inc., 404 U.S. 412, 414, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972) (per curiam); see also Kremens v. Bartley, 431 U.S. 119, 126-27, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977) ().
{8} There is no current controversy as to SOAP because it has been repealed and the City may not now revive it. To comment on SOAP would be to pass upon a law not in effect and, unless state law is changed, that cannot be reenacted. Thus, not only are we without a current controversy, it appears that there cannot be a controversy regarding SOAP in the foreseeable future. We note, however, that to the extent any provisions of SOAP are duplicated in ASORNA, those issues will be addressed in our analysis of ASORNA. We now turn our attention to ASORNA.
{9} The City enacted ASORNA in an effort to cure the constitutional infirmities in SOAP. The district court found certain provisions of ASORNA unconstitutional and severed those provisions from the ordinance, leaving the remaining ordinance intact. The ACLU appealed, arguing that ASORNA is preempted by state law; suffers from vagueness and over breadth, and violates due process and equal protection; violates offenders' rights to be free from unreasonable searches and seizures; and violates state and federal protections against double jeopardy, ex post facto laws, and cruel and unusual punishment. Addressing the ACLU's challenges to ASORNA, we provide more detail on the specific provisions of ASORNA in the discussion below.
{10} We review constitutional challenges de novo. State v. Druktenis, 2004-NMCA-032, ¶ 14, 135 N.M. 223, 86 P.3d 1050. In reviewing constitutional attacks, "there exists a presumption of constitutionality, and the party attacking the constitutionality of the statute has the burden of proving the statute is unconstitutional beyond all reasonable doubt." Id. ¶ 15. See also City of Albuquerque v. One (1) 1984 White Chevy, 2002-NMSC-014, ¶ 5, 132 N.M. 187, 46 P.3d 94 () (...
To continue reading
Request your trial
-
People v. Bosca
...a minor during the commission of a larceny).However, this conclusion is not universal. See ACLU of New Mexico v. City of Albuquerque, 139 N.M. 761, 772, 137 P.3d 1215 (N.M.Ct.App., 2006) (stating that the defendant city's sex offender registration ordinance was constitutionally defective to......
-
Salopek v. Friedman
...of Albuquerque v. Jones, 87 N.M. 486, 488, 535 P.2d 1337, 1339 (1975); ACLU of N.M. v. City of Albuquerque, 2006–NMCA–078, ¶ 10, 139 N.M. 761, 137 P.3d 1215. We address each argument in turn.1. The Cap Does Not Violate the Right to a Trial by Jury {50} The Act expressly provides that “[e]xc......
-
John B. v. Superior Court
...§ 1714), the courts must locate the line between liability and nonliability at some point, a decision which is essentially political'"]; [137 P.3d 1215] Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912 ["`duty is not sacrosanct in itself, but only an expression of the......
-
City of Albuquerque v. Pangaea Cinema LLC
...personal right or civil liberty guaranteed by the constitution.” ACLU of N.M. v. City of Albuquerque, 2006–NMCA–078, ¶ 19, 139 N.M. 761, 137 P.3d 1215 (internal quotation marks and citation omitted). Under that heightened review of a legislative action, the burden of proof is on the governm......
-
SEX OFFENDERS AND THE FREE EXERCISE OF RELIGION.
...kidnapping of a minor as a sex offense); People v. Johnson, 870 N.E.2d 415 (III. 2007) (same); ACLU of N.M. v. City of Albuquerque, 137 P.3d 1215 (N.M. Ct. App. 2006) (striking down the decision); State v. Robinson, 873 So.2d 1205 (Fla. 2004) (68) See GA. CODF. ANN. [section] 42-1-12(e) (1)......