Rio Grande Kennel Club v. Albuquerque

• Decision Date: 02 June 2008
• Docket Number: No. 27,207.,27,207.
• Citation: 2008 NMCA 093,190 P.3d 1131
• Parties: RIO GRANDE KENNEL CLUB, a New Mexico corporation, Juxi Burr, Ruth Davis, Julia Kirkpatrick, Mike Melloy, Ken Sweeney, Ross Jones, Cherie Starr, and Paula Fay, Individually, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

190 P.3d 1131

2008 NMCA 093

RIO GRANDE KENNEL CLUB, a New Mexico corporation, Juxi Burr, Ruth Davis, Julia Kirkpatrick, Mike Melloy, Ken Sweeney, Ross Jones, Cherie Starr, and Paula Fay, Individually, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellee.

No. 27,207.

Court of Appeals of New Mexico.

June 2, 2008.

Wiggins, Williams & Wiggins, P.C., Patricia G. Williams, Lorna M. Wiggins, Albuquerque, NM, for Appellants.

Robert M. White, City Attorney, Greg Wheeler, Assistant City Attorney, Peter Peirotti, Assistant City Attorney, Albuquerque, NM, for Appellee.

OPINION

BUSTAMANTE

,

Judge.

{1} The Rio Grande Kennel Club and a number of individual dog owners, kennel owners, and veterinarians (collectively, Plaintiffs) filed a complaint in the district court seeking declaratory judgment and injunctive relief against the City of Albuquerque (the City) regarding the City's Humane and Ethical Animal Regulations and Treatment ordinance (HEART). HEART regulates the ownership and care of certain animals. Plaintiffs sought to have HEART declared unconstitutional for numerous reasons. The City moved to dismiss Plaintiffs' claims. After considering the arguments, the district court found that two provisions of HEART were unenforceable. However, because the provisions were severable, the district court removed those sections and dismissed Plaintiffs' complaint with respect to the remainder of HEART. Plaintiffs appeal on numerous grounds relating to their claim that HEART is unconstitutional. We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

{2} Plaintiffs' complaint alleged that HEART: (1) violates due process by forcing the sterilization of certain pets, which constitutes a taking without just compensation; (2) violates federal and state rights to procedural due process because it subjects citizens to criminal sanctions and loss of property through City administrative proceedings without a "true right of appeal," as well as unreasonable searches and seizures under a provision allowing arbitrary inspections of a pet owner's premises; (3) violates federal and state rights to substantive due process and equal protection because it serves no legitimate government purpose; (4) violates the constitutional prohibition against ex post facto laws because it criminalizes previously legal activities; (5) violates provisions of the New Mexico Constitution regarding ownership of property, equal protection, ex post facto laws, and unreasonable searches and seizures; (6) is preempted by federal law; (7) is preempted by state law; (8) violates the federal commerce clause; (9) impedes freedom of contract; (10) is unconstitutionally vague; (11) contains an impermissible excise tax; and (12) violates the Fourth Amendment because it allows animal control officers to conduct warrantless searches. Plaintiffs requested, among other things, that the district court declare HEART unconstitutional and enjoin the City from enforcing HEART. Plaintiffs thereafter filed a motion for temporary restraining order (TRO) and preliminary injunctive relief.

{3} The City filed five motions to dismiss Plaintiffs' complaint, including: (1) a motion to dismiss Plaintiffs' takings claims; (2) a motion to dismiss Plaintiffs' state constitutional claims, all due process claims and Fourth Amendment claims; (3) a motion to dismiss Plaintiffs' claims for equitable relief; (4) a motion to dismiss Plaintiffs' preemption and commerce clause claims; and (5) a motion to dismiss miscellaneous claims regarding whether HEART contains an unconstitutional lemon law, impedes freedom of contract, is unconstitutionally vague, constitutes an impermissible ex post facto law, and contains an impermissible excise tax. The district court held a hearing on Plaintiffs' application for preliminary injunction and the City's motions to dismiss on September 18, 2006.

{4} The district court entered a memorandum opinion and order on October 2, 2006, granting the City's motions to dismiss Plaintiffs' claims, with two exceptions:

First, HEART's authorization of warrantless, unannounced inspections ... constitutes a violation of the constitutional protection against unreasonable search and seizure. Second, HEART's requirements regarding kennels ..., including the addition of fire suppression and radiant floor heating systems, constitute a substantive due process violation. Thus, these provisions of HEART are unenforceable. As the ordinance contains a severability clause, the remainder of the ordinance is valid.

Plaintiffs timely filed a notice of appeal from that order. The City did not cross-appeal the district court's conclusion that portions of HEART are unenforceable.

{5} Plaintiffs' claims on appeal are substantially similar to the ones they raised below, although they have abandoned several of them. In addition to their remaining constitutional claims, Plaintiffs assert that the district court erred by dismissing the complaint: (1) based on an undeveloped record, and (2) without allowing Plaintiffs to amend the complaint. The City, in addition to the defenses it raised below, urges us to affirm on the grounds that: (1) Plaintiffs lack standing, (2) Plaintiffs did not seek leave to amend the complaint, (3) development of the record was unnecessary because Plaintiffs made a facial challenge to HEART, and (4) even if facts were material below, the district court correctly entered summary judgment because Plaintiffs introduced matters outside the pleadings.

{6} We first address the issue regarding Plaintiffs' standing. We next examine Plaintiffs' procedural attacks on the district court's order dismissing the case. Finally, we consider Plaintiffs' various constitutional claims.

DISCUSSION

1. Standing

{7} The City raises the issue of standing for the first time on appeal, which it is permitted to do. See Town of Mesilla v. City of Las Cruces, 120 N.M. 69, 70, 898 P.2d 121, 122 (Ct.App.1995) ("[S]tanding is a jurisdictional question that may be raised at any time during the pendency of a proceeding." (internal quotation marks and citation omitted)); but see Williams v. Stewart, 2005-NMCA-061, ¶ 24, 137 N.M. 420, 112 P.3d 281 (noting that "even when issues may be raised for the first time on appeal, issues that rely on facts may not be reviewable based on the state of the record"). "The determination of whether a party has standing to sue is a question of law, which we review de novo." Forest Guardians v. Powell, 2001-NMCA-028, ¶ 5, 130 N.M. 368, 24 P.3d 803.

{8} "To acquire standing, a plaintiff must demonstrate the existence of (1) an injury in fact, (2) a causal relationship between the injury and the challenged conduct, and (3) a likelihood that the injury will be redressed by a favorable decision." Id. ¶ 16 (internal quotation marks and citation omitted). Our Supreme Court has held that a plaintiff can meet the first element — injury in fact — by alleging an intention to engage in conduct "arguably affected with a constitutional interest, but proscribed by a statute, [when] there exists a credible threat of prosecution thereunder." Am. Civil Liberties Union v. City of Albuquerque, 1999-NMSC-044, ¶ 9, 128 N.M. 315, 992 P.2d 866 (internal quotation marks and citation omitted). However, "a plaintiff must also show that the injury alleged is within the zone of interests to be protected by a constitutional provision or statute." Forest Guardians, 2001-NMCA-028, ¶ 19.

{9} We conclude that Plaintiffs have alleged sufficient facts to confer standing in the present case. Plaintiffs alleged that each of them either owns animals or runs a business that is subject to HEART. Plaintiffs further alleged that they have standing because HEART would curtail their previously lawful activities and burden their civil liberties. For example, Plaintiffs alleged that: (1) the sterilization provisions in HEART would impair some of Plaintiffs' property interests in breeding and showing their animals; and (2) the requirements in HEART for housing and restraining animals are unreasonable. Therefore, Plaintiffs sufficiently alleged an adequate threat of imminent injury resulting from the application of HEART that would be redressed by a finding that HEART is unconstitutional in the manner Plaintiffs have alleged. See id. ¶ 16.

2. Development of the Factual Record

{10} Plaintiffs argue that the district court should have allowed them to develop a factual record prior to granting the City's motions to dismiss. We note, however, that development of the factual record was immaterial to the district court's evaluation of the City's motions to dismiss.

A motion to dismiss pursuant to [Rule] 1-012(B)(6) [NMRA 2003] tests the legal sufficiency of the complaint. In reviewing an order granting a motion to dismiss, we accept as true all facts properly pleaded. A complaint is subject to dismissal under [Rule] 1-012(B)(6) only if under no state of facts provable thereunder would a plaintiff be entitled to relief.... Under this standard of review only the law applicable to such claim is tested, not the facts which support it.

Hovet v. Lujan, 2003-NMCA-061, ¶ 8, 133 N.M. 611, 66 P.3d 980 (emphasis added) (alterations in original) (internal quotation marks and citation omitted). We conclude that the district court was not required to allow Plaintiffs to develop the factual record in order to decide the motions to dismiss. Accordingly, we need not address the City's argument that the affidavits Plaintiffs submitted in support of their motion for injunctive relief converted the motion to dismiss into a motion for summary judgment.

3. Amendment of the Complaint

{11} Plaintiffs assert that the district court should have allowed them to amend the complaint prior to granting the motions to dismiss. Rule 1-015 NMRA governs amendments to pleadings and provides, in pertinent part, as follows:

A party may amend his pleading once as a matter of course at any time before a...