N.M. Gamefowl Ass'n v. State ex rel. King

• Citation: 215 P.3d 67,2009 NMCA 088
• Decision Date: 08 May 2009
• Docket Number: No. 28,388.,28,388.
• Parties: NEW MEXICO GAMEFOWL ASSOCIATION, INC.; Charles Kent Bullock, d/b/a Bullock's Feed; Don Spearman, d/b/a DD Animal Nutrition and Supply; Tony T. Ortega, d/b/a Messilla Valley Feeds; Johnny Unias Montoya, d/b/a Johnny's Service Station; Raul Trevino, d/b/a Lewallen Supply; and Pradip D. Bhakta, d/b/a Hilltop Inn, Plaintiffs-Appellants, v. STATE of New Mexico ex rel. Gary KING; Faron Segotta; The Honorable Bill Richardson; Does 1-40, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

215 P.3d 67

2009 NMCA 088

NEW MEXICO GAMEFOWL ASSOCIATION, INC.; Charles Kent Bullock, d/b/a Bullock's Feed; Don Spearman, d/b/a DD Animal Nutrition and Supply; Tony T. Ortega, d/b/a Messilla Valley Feeds; Johnny Unias Montoya, d/b/a Johnny's Service Station; Raul Trevino, d/b/a Lewallen Supply; and Pradip D. Bhakta, d/b/a Hilltop Inn, Plaintiffs-Appellants, v. STATE of New Mexico ex rel. Gary KING; Faron Segotta; The Honorable Bill Richardson; Does 1-40, Defendants-Appellees.

No. 28,388.

Court of Appeals of New Mexico.

May 8, 2009.

Certiorari Denied, No. 31,764, July 14, 2009.

Fitch & Tausch, LLC, Thomas G. Fitch, Socorro, NM, Mark L. Pollot, Boise, ID, for Appellants.

Gary K. King, Attorney General, David K. Thomson, Assistant Attorney General, Eric R. Miller, Assistant Attorney General, Scott Fuqua, Assistant Attorney General, Santa Fe, NM, for Appellees.

OPINION

CASTILLO, Judge.

{1} This matter comes before the Court on Plaintiffs' constitutional challenges to the New Mexico cockfighting ban dictated by NMSA 1978, Sections 30-18-1 and-9 (2007). The district court dismissed the complaint based on Plaintiffs' lack of standing and the determination that the challenged statutes were constitutional. Although we hold that the district court erred with respect to its ruling on associational standing, we agree with the district court that the statutes are constitutional, and we therefore affirm.

I. BACKGROUND

{2} In 2007, our Legislature amended Sections 30-18-1 and-9 in order to effectively ban cockfighting in the state of New Mexico. The amendment to Section 30-18-1 eliminated Subsection K, which had excepted cockfighting from the general prohibition on cruelty to animals. The amendment to Section 30-18-9 created a criminal penalty for persons involved with cockfighting. Plaintiffs, who are the New Mexico Gamefowl Association, Inc. (NMGA) and a number of business owners, filed a complaint in district court against the State of New Mexico, the Governor, the Attorney General, the head of the State Police Department, and forty unnamed individuals (collectively Defendants). The complaint disputes the procedural propriety of the passage of the statutes and the constitutionality of Sections 30-18-1 and-9 under Article II, Section 5 of the New Mexico Constitution.

{3} Defendants responded with a motion to dismiss, in which they made four arguments: (1) Plaintiffs have no standing to challenge the cockfighting ban, (2) the courts do not review the Legislature's adherence to procedures that are required by the New Mexico Constitution for the enactment of bills, (3) the challenged procedures do not apply to the enactment of Sections 30-18-1 and-9, and (4) the New Mexico Constitution does not protect cockfighting. After a hearing, the district court granted Defendants' motion, concluding that Plaintiffs lacked standing and that the statutes were constitutional. Plaintiffs appeal the order.

II. DISCUSSION

{4} Plaintiffs urge reversal on three grounds and argue that (1) Sections 30-18-1 and-9 are void because the Legislature did not follow the procedures for the passage of laws dictated by Article IV, Section 15 of the New Mexico Constitution, (2) Plaintiffs have standing to challenge the constitutionality of Sections 30-18-1 and-9, and (3) Sections 30-18-1 and-9 violate substantive protections of Article II, Section 5 of the New Mexico Constitution. We address each argument in turn.

A. New Mexico Constitution Article IV, Section 15

{5} Article IV, Section 15 of the New Mexico Constitution requires that

[n]o bill, except bills to provide for the public peace, health and safety, and the codification or revision of the laws, shall become a law unless it has been printed, and read three different times in each house, not more than two of which readings shall be on the same day, and the third of which shall be in full.

Plaintiffs allege in their complaint that the Legislature failed to follow the required constitutional procedure and that, as a result, Sections 30-18-1 and-9 are void. For the purposes of reviewing the district court's dismissal of Plaintiffs' allegations, we treat all facts alleged in the complaint as if they were true. Prot. & Advocacy Sys. v. City of Albuquerque, 2008-NMCA-149, ¶ 17, 145 N.M. 156, 195 P.3d 1. In response to Plaintiffs' argument, Defendants counter that courts will not look behind an enacted law in order to ensure that the Legislature complied with the reading rule. We agree with Defendants.

{6} In Kelley v. Marron, our Supreme Court considered an argument identical to that of Plaintiffs. 21 N.M. 239, 241, 153 P. 262, 262 (1915). A litigant challenged certain legislative acts and asserted that the acts were "not legally enacted." Id. The Kelley Court began by considering separation of powers principles, id. at 243-46, 153 P. at 263-64, and concluded that "[t]he only interpretation which is consistent with the equality and independence of the three departments of government is that such constitutional provisions are directed to them severally, and that upon the department to which the provision is directed rests the responsibility and duty of interpreting and complying therewith." Id. at 245, 153 P. at 264. The Court was also concerned with the clarity and the certainty of the law:

An act of the Legislature, when regularly on file in the office of the secretary of state, is, and must necessarily be, either a law or not a law, and it is preposterous to hold that that which is the law is so only prima facie, or to hold that that which is in fact not a law is even prima facie so. What constitutes the statutory law of a state must necessarily be an absolute proposition, and not simply a prima facie one.

Id. at 250, 153 P. at 266 (internal quotation marks and citation omitted). After an extensive review of the law in other jurisdictions, id. at 247-64, 153 P. at 264-71, the Court held that the complaint, which challenged the validity of the law, was properly dismissed. Id. at 241, 264, 153 P. at 262, 271. Our Supreme Court acknowledged Kelley's holding in State ex rel. Clancy v. Hall stating, "courts cannot go behind an enrolled and engrossed bill, properly authenticated, found in the office of the secretary of state as a part of the records of that office." 23 N.M. 422, 431-32, 168 P. 715, 718 (1917); see State ex rel. Wood v. King, 93 N.M. 715, 719, 605 P.2d 223, 227 (1979) ("[A]n enrolled and engrossed copy, properly signed and authenticated, approved by the Governor and deposited with the Secretary of State, is conclusive as to the regularity of its enactment and the courts may not look behind it to the journals to determine whether constitutional requirements have been met.").

{7} Plaintiffs posit three arguments in order to support their position that Kelley and its progeny should be reexamined: (1) Legislators commonly do not read bills and are not aware of the actual language; (2) Kelley does not account for "vast changes in circumstances, judicial experience, and trends in law"; and (3) a conclusive presumption of regularity violates due process protections. With regard to Plaintiffs' first concern, Kelley stated that "[t]he people are as well able to choose honest and capable lawmakers as they are to choose upright and righteous judges." 21 N.M. at 245, 153 P. at 264. Although Plaintiffs argue that a lack of judicial review will effectively write the requirements out of the constitution, Kelley explained that constitutional mandates are allotted to each of the three branches of government. Id. at 243-44, 153 P. at 263. Those

mandates thus given must be held to be directed only to the officers exercising the powers conferred, upon whom rests the responsibility of seeing that their acts comply with such requirements, unless some one of the departments of government has been created with superior powers and prerogatives and given a supervisory control over the other supposedly equal and independent departments of government.

Id. Thus, each branch bears the responsibility for its own procedures. And the public is not without remedy because "[i]f ... members of the [Legislature] violate their constitutional duties on adjournment, they can be defeated the next time such offices come up for election, but the remedy is not for the courts." 1 Norman J. Singer, Statutes and Statutory Construction § 15:3, at 822 (6th ed.2002).

{8} In their second argument, Plaintiffs contend that the law has evolved since Kelley and that the "conclusive presumption of the regularity of acts by government officials has given way to the wide-spread use of rebuttable presumptions of regularity." Plaintiffs argue that it is "illogical" and "nonsensical" to continue to apply Kelley's conclusive presumption. Despite these arguments, "[a] substantial number of states follow the conclusive presumption rule." 1 Singer, supra, § 15:3, at 823. But see Ittai Bar-Siman-Tov, Legislative Supremacy in the United States?: Rethinking the "Enrolled Bill" Doctrine, 97 Geo. L.J. 323, 340 (2009) ("Today, only a minority of state courts still follow [the enrolled bill doctrine] while most have modified or completely rejected this doctrine."). Thus, we disagree that the conclusive presumption outlined by Kelley is as outdated as Plaintiffs appear to argue. While we acknowledge that different states may have different approaches to this question, Plaintiffs fail to explain why the procedures of other states should cause New Mexico to deviate from its present system.

{9} Finally, Plaintiffs challenge Kelley on due process grounds. Based on the statement in the brief in chief, "[w]here a presumption intrudes upon a significant liberty interest it may violate due process of law," Plaintiffs appear to argue that the application of Kelley and the conclusive presumption of regularity violate procedural due process protections. In order to establish a violation of due process, Plaintiffs must show that (1) they have a...