American Civil Liberties Union v. Albuquerque

• Decision Date: 17 November 1999
• Docket Number: No. 24763.,24763.
• Citation: 992 P.2d 866,1999 NMSC 44,128 N.M. 315
• Parties: AMERICAN CIVIL LIBERTIES UNION OF NEW MEXICO, Erin Hartsock, Sam Clarke, Angelina Clarke, Jarrett Hines-Kay, Willy Lusk-Claiborne, Terry Cottle, Jamie Stout and Yvette Stout, Plaintiffs-Appellees and Cross-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellant and Cross-Appellee.
• Court: New Mexico Supreme Court

992 P.2d 866

128 N.M. 315

1999 NMSC 44

AMERICAN CIVIL LIBERTIES UNION OF NEW MEXICO, Erin Hartsock, Sam Clarke, Angelina Clarke, Jarrett Hines-Kay, Willy Lusk-Claiborne, Terry Cottle, Jamie Stout and Yvette Stout, Plaintiffs-Appellees and Cross-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellant and Cross-Appellee.

No. 24763.

Supreme Court of New Mexico.

November 17, 1999.

Krehbiel, Bannerman, Horn & Hisey, P.A., Phil Krehbiel, Rikki L. Quintana, Albuquerque, Gregory S. Wheeler, Albuquerque, for Appellant and Cross-Appellee.

Cates & Hammel, P.C., Kathryn Hammel, Los Lunas, Mark R. Horton, Clovis, Philip B. Davis, Albuquerque, for Appellees and Cross-Appellants.

OPINION

SERNA, Justice.

{1} The City of Albuquerque (City) appeals from the district court's order, entered in response to the parties' cross-motions for summary judgment, holding that the City's juvenile Curfew Ordinance (Curfew) violates the New Mexico Constitution and is also preempted by the State Children's Code. The district court denied the City's motion for a stay pending appeal. The American Civil Liberties Union of New Mexico, children, parents, and a business owner (Plaintiffs) cross-appeal on the denial of other asserted grounds to strike the Curfew and on the denial of attorney's fees and expenses. We hold that the Children's Code preempts the Curfew and the Safe Teen Operation Program (STOP program), and thus affirm the district court.

Facts and Background

Curfew Ordinance

{2} The City enacted the Curfew in order "to provide for the protection of minors from each other and from other persons, to provide for the enforcement of parental control over and responsibility for children, to protect the general public and reduce the incidence of juvenile criminal activities." Albuquerque, N.M., Revised Ordinances § 12-5-9(A)(2) (1994). The Curfew mandates that it is unlawful for any person under seventeen years of age to remain in a public place or on the premises of an establishment within Albuquerque during curfew hours, for a parent or guardian of a minor to knowingly permit, or by insufficient controls allow, a minor to violate the curfew, and for the owner or employee of an establishment to knowingly allow a minor to remain upon the premises of the establishment during curfew hours. Section 12-5-9(C). Violation of the Curfew is punishable by a maximum fine of $500 and imprisonment of up to ninety days. Albuquerque, N.M., Revised Ordinances § 12-1-99(I) (1994).

STOP Program

{3} The parties stipulated to the following facts. The City implemented the STOP program, a pilot initiative, from July 19 to September 30, 1996, during which the Curfew was enforced Friday through Sunday nights. During this program, 616 children were taken into custody for alleged curfew violations. Eighty-three of the police reports contain no narrative summary explaining the basis for the stop, and of the remaining children, 106 reports indicate that the stop occurred because of some other suspected criminal violation, most often a traffic violation. The vast majority of children stopped and taken into custody for alleged curfew violations were "talking or walking with others."

{4} Police officers took children into custody under Section 12-5-9 of the Curfew, handcuffed and patted them down at the scene of the curfew violation, and took them to Wells Park Community Center, where the handcuffs were removed. City personnel photographed the children, took physical descriptions, and questioned them. The officers also completed a police report. Information was noted on intake forms, and a copy of these forms was given to the Albuquerque Public Schools and the State of New Mexico Juvenile Probation and Parole Office. The children were held at the Center until they were released to either a parent or guardian, and if neither could be found, they were released to a probation officer or to a licensed child care shelter.

{5} The police officers did not inform the children of their constitutional right against self-incrimination prior to or after their arrival at Wells Park. Each child was then required to attend an educational session pertaining to the Curfew ordinance. Parents or guardians were invited, but not required, to attend this session.

Proceedings in the District Court

{6} Plaintiffs filed an action for declaratory and injunctive relief regarding the Curfew for facial constitutional violations in August of 1995, prior to the STOP program. None of the individual Plaintiffs were stopped, taken into custody, cited or prosecuted for violation of the Curfew. The district court held a hearing on the cross-motions for summary judgment in 1997, and issued its final order granting Plaintiffs' motion on September 25, 1997. The court concluded that: (1) the Curfew Ordinance violates the guarantees of Article II of the New Mexico Constitution because it does not provide a mechanism for judicial review of any arrest or detention of the children; and (2) the Curfew is preempted by the Children's Code in that a child may only be taken into custody pursuant to a court order, for the commission of a delinquent act, or by a Juvenile Probation and Parole Officer, under NMSA 1978, §32A-2-9 (1993). The court denied Plaintiffs' motion on other issues because of the above findings, and denied the City's motion for summary judgment as a matter of law. Finally, the court denied Plaintiffs' request for attorney's fees and costs under the private attorneys general doctrine and the City's motion for a stay of the injunction pending appeal pursuant to Rule 1-062(C) NMRA 1999.

{7} The City appeals, and Plaintiffs cross-appeal. The parties filed a joint motion under NMSA 1978, § 34-5-14(C) (1972) (significant question of law under the state or U.S. Constitutions, or issue of substantial public interest) and Rule 12-606 NMRA 1999 (certification from the Court of Appeals), to certify the case to this Court.

Discussion

Standing

{8} Plaintiffs argue that they have standing to challenge the Curfew because their "previously-lawful activities during curfew hours [were] curtailed by the Curfew Ordinance." Plaintiffs assert that their challenge to the Curfew includes the STOP program as an enforcement scheme. The City argues that Plaintiffs have no standing to challenge the STOP program, as none of them were arrested or charged during this program.

{9} We do not believe that our analysis of this case must be predicated upon the arrest and prosecution of the Plaintiffs before they may seek relief. See Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973)

(holding that plaintiffs in an abortion case had "standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution"). As the United States Supreme Court stated in Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (citations and internal quotation marks omitted).

When contesting the constitutionality of a criminal statute, it is not necessary that [the plaintiff] first expose himself [or herself] to actual arrest or prosecution to be entitled to challenge [the] statute that he [or she] claims deters the exercise of his [or her] constitutional rights. When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he [or she] should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.

We agree with Plaintiffs that the Curfew curtails their previously legitimate late-night activities, and that the STOP program demonstrates the City's intention to apprehend individuals in violation of the Curfew. Therefore, Plaintiffs have standing to challenge the Curfew and the STOP program.

Children's Code Preemption of the Curfew

{10} Under Article X, Section 6(D) of the New Mexico Constitution, "[a] municipality... may exercise all legislative powers and perform all functions not expressly denied by general law or charter." This Court has held that "any New Mexico law that clearly intends to preempt a governmental area should be sufficient without necessarily stating that affected municipalities must comply and cannot operate to the contrary." Casuse v. City of Gallup, 106 N.M. 571, 573, 746 P.2d 1103, 1105 (1987). In this case, we determine that the Children's Code contains the "express statement of the authority or power denied" that is necessary to preempt a home-rule ordinance under the law articulated in Apodaca v. Wilson, 86 N.M. 516, 521, 525 P.2d 876, 881 (1974). For the reasons discussed below, we conclude that the Children's Code preempts the City from enacting this Curfew ordinance because the ordinance establishes criminal sanctions of incarceration and fines for juvenile activity which is not unlawful when committed by adults.

{11} Included in the Legislature's stated purposes of the Children's Code is "to provide for the care, protection and wholesome mental and physical development of children" as well as "to provide judicial and other procedures through which the provisions of the Children's Code are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights are recognized and enforced." NMSA 1978, § 32A-1-3 (1993). Further, under NMSA 1978, § 32A-1-8(A) (1995), the children's court has exclusive original jurisdiction of all proceedings under the Children's Code involving a child alleged to be delinquent, neglected, abused, or a child of a family in need of services. We conclude that, through these provisions, the Legislature clearly intended to protect and preserve the legal rights of children in New Mexico. While this language does not prohibit municipalities from drafting ordinances that proscribe specific conduct of children which is...