Harjo v. City of Albuquerque

Decision Date30 March 2018
Docket NumberCIV 16-1113 JB/JHR
PartiesARLENE HARJO, Plaintiff, v. CITY OF ALBUQUERQUE, Defendant.
CourtU.S. District Court — District of New Mexico

THIS MATTER comes before the Court on the Defendant City's Motion for Judgment on the Pleadings and Memorandum in Support, filed June 7, 2017 (Doc. 44)("Motion"). The primary issues are: (i) whether the Court must dismiss the Motion, because the parties have developed a factual record; (ii) whether Defendant City of Albuquerque's motor vehicle seizure and forfeiture ordinance, Article 6, §§ 7-6-1 to 7 ("Forfeiture Ordinance"), which funds the City of Albuquerque's vehicle forfeiture program,1 violates the Fourteenth Amendment to the Constitution of the United States of America by creating an unlawful profit incentive for the City of Albuquerque and its employees; (iii) whether the City of Albuquerque's Forfeiture Ordinance violates the Fourteenth Amendment, because it places the burden of proof on property owners to prove their innocence to recover their seized property; and (iv) whether the Court should dismiss Plaintiff Arlene Harjo's state law claim under 28 U.S.C. § 1367's novelty prong, which requires the Court to consider whether the New Mexico Forfeiture Act, N.M. Stat. Ann. §§ 31-27-1 to 11 ("NMFA"), preempts the Forfeiture Ordinance. The Court concludes that it will not deny the entire Motion, merely because the parties have developed a record, as rule 12(c) of the Federal Rules of Civil Procedure requires the Court to treat the Motion as it would any 12(b)(6) motion. Discovery's status does not bear on the 12(b)(6) analysis. The Court also concludes, however, that A. Harjo has stated a claim on which the Court can grant relief for both her unlawful profit incentive and procedural due process claims. The Court concludes that she has stated an unlawful profit incentive claim, because she has alleged that the vehicle forfeiture program is financially dependent on the revenues gained from seizing vehicles, and because she has alleged that City of Albuquerque employees use the seized vehicles for personal use. That city officials might depend on the revenues for their salary and that they use the seized cars for personal use "inject[s] a personal interest, financial or otherwise, into the enforcement process." Marshall v. Jerrico, Inc., 446 U.S. 238, 249-50 (1980)("Marshall"). The Court dismisses, however, her unlawful profit incentive claim to the extent that it contends that the City of Albuquerque violates due process by budgeting for and using funds it raises from forfeitures to pay for its costs. That a program pays for itself through its statute, at least in this case, does not inject a personal or institutional interest to such a degree that it implicates due process. The Court also concludes that A. Harjo has stated a procedural due process claim, because the Forfeiture Ordinance places the burden of proof on her to prove her innocence. Under Nelson v. Colorado, such a burden violates due process. See 137 S. Ct. 1249, 1256 (2017). To the extent that A. Harjo alleges, however, that there is an independent procedural due process violation because of the Forfeiture Ordinance's fees, the Court concludes that the risk of erroneous deprivation is not significant enough to raise constitutional concerns. Finally, the Court dismisses without prejudice the remaining state law claim, because it raises a novel issue not yet considered by New Mexico appellate courts.


The Court takes the facts from the First Amended Complaint, filed February 1, 2017 (Doc. 32)("Amended Complaint"). The same standards for evaluating a 12(b)(6) motion apply to a motion for a judgment on the pleadings. See Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000)("A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss under rule 12(b)(6)."). Thus, the Court accepts "all facts pleaded by the non-moving party as true and grants all reasonable inferences from the pleadings in that party's favor." Sanders v. Mountain America Federal Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012).

1. The City of Albuquerque's Forfeiture Ordinance.

Under the City of Albuquerque's Forfeiture Ordinance, the City of Albuquerque may temporarily seize and subject cars to permanent forfeiture proceedings if, among other things: (i) the person operating the car is committing a DWI offense and that person has either "been arrested, summonsed or convicted" for a prior DWI offense, has committed a homicide, or has inflicted great bodily harm by vehicle while under the influence; or (ii) the person operating the car has a suspended or a revoked license as a result of a DWI arrest or conviction. 6 ROA §§ 7-6-2; 7-6-4.2 Every year, the vehicle forfeiture program "seizes over 1,000 cars," and generates "over $1 million in revenue" through forfeited vehicle auctions and settlement agreements with owners. Amended Complaint ¶ 11, at 3. See id. ¶ 14, at 4. The auction and settlement agreements fund almost all of the vehicle forfeiture program. See Amended Complaint ¶ 16, at 4. For example, funds generated "pay the salaries of the very city attorneys who seek the forfeitures" and also bankroll "expenses associated with program personnel," such as "equipment, vehicles, travel, training, facilities, and other purchases." Amended Complaint ¶¶ 15, 19, at 4-5. Revenues from the vehicle forfeiture program fund other government programs and salaries only if there is a surplus after paying for the forfeiture program's expenses. See Amended Complaint ¶ 15, at 4.

Indeed, the City of Albuquerque plans for the vehicle forfeiture program to fund itself. See Amended Complaint ¶¶ 17-18, at 4-5. See also Amended Complaint ¶ 31, at 7 ("[T]he City's Chief Hearing Officer stated that Albuquerque's ordinance was written specifically to provide that money raised through the forfeiture program must be used to fund the program."). Accordingly, the vehicle forfeiture program is "financially dependent" on seizing a lot of cars. Amended Complaint ¶ 16, at 4. In 2016, for example, the budget "included as a performance measure . . . a target to conduct 1,200 vehicle seizure hearings, to release 350 vehicles under agreements with the property owners, to immobilize 600 vehicles, and to sell 625 vehicles at auction." Amended Complaint ¶ 17, at 4. From those targeted seizures, it "anticipated that $512,000" of the revenues generated would be used to pay "the salaries of two paralegals, two attorneys, two DWI seizure assistants and one DWI seizure coordinator." Amended Complaint ¶ 18, at 5. In addition to drawing their salaries from the vehicle forfeiture program, forfeiture program officials take advantage of the seized cars for personal use. See Amended Complaint ¶ 20, at 5. "Officials drive cars around town during the day and even take them home at night." Amended Complaint ¶ 20, at 5. For example, in 2014, at least one city official was seen driving a seized Cadillac Escalade. See Amended Complaint ¶ 20, at 5. Almost all vehicle forfeiture program employees benefit personally from the vehicle forfeiture program, because "increased forfeiture revenues" leads to an increase in the amount of money available to spend on equipment, facilities, and training. Amended Complaint ¶¶ 19, 21 at 5.

Once the City of Albuquerque has seized a car, it sends a seizure notice informing the owner that he or she can contest the seizure at an administrative hearing. See Amended Complaint ¶ 22, at 5-6. See also 6 ROA § 7-6-5(D). The owner has only a few days to request a hearing once he or she receives the notice; in DWI cases, for example, the time period is ten days. See Amended Complaint ¶ 23, at 6. Before the hearing, city attorneys typically contact the owner to try to settle the case and offer immediate return of the owner's property, "but only if they sign an agreement to have their car immobilized for a period of weeks or months and to pay hundreds or even thousands of dollars to the city." Amended Complaint ¶ 24, at 6. See 6 ROA § 7-6-6.

The City of Albuquerque need only show "probable cause that a crime has occurred" to prevail at the administrative hearing. Amended Complaint ¶ 12, at 3. Moreover, the owner of the car need not have committed a crime to lose the car; "Albuquerque can take property based on a crime allegedly committed by another person entirely, so long as the vehicle was somehow involved in the offense." Amended Complaint ¶ 12, at 3-4. While the administrative hearing process progresses, the City of Albuquerque assesses fees for towing and storing the vehicle. See Amended Complaint ¶¶ 38-39, at 8-9. Storage fees "accumulate at a rate of $10 per day," and city attorneys inform property owners of the fees "in an effort to encourage property owners to settle" rather than challenging the forfeiture. Amended Complaint ¶ 39, at 9. See Amended Complaint ¶ 40, at 9 ("[T]he City's Chief Hearing Officer stated that he uses storage fees to pressure property owners not to seek a continuance of the hearing until after their underlying trial."). These fees can accumulate into thousands of dollars. See Amended Complaint ¶¶ 38, at 9. Under the Albuquerque Municipal Code, the City of Albuquerque may still collect fees from the seized car's owners, even if the hearing officer finds in the owner's favor -- such as on an "innocent owner" defense.3 Amended Complaint ¶¶ 38-39, at 9. See also 6 ROA § 7-6-5 (D)(8).

After a hearing officer makes a determination, the City of Albuquerque initiates civil forfeiture proceedings in the Second Judicial District Court, County of Bernalillo, State of New Mexico. See Amended Complaint ¶ 41, at 10. An owner may affirmatively intervene in the proceeding to protect his or her property at the district court level, but, even if the owner prevails there, he or she may still owe fees if the City of Albuquerque...

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