Titus v. City of Albuquerque

• Decision Date: 03 May 2011
• Docket Number: No. 29,461.,29,461.
• Citation: 2011 -NMCA- 038,149 N.M. 556,252 P.3d 780
• Court: Court of Appeals of New Mexico
• Parties: Victor A. TITUS and The Titus & Murphy Law Firm, Petitioner–Appellant,v.CITY OF ALBUQUERQUE, Respondent–Appellee.

149 N.M. 556

252 P.3d 780

2011 -NMCA- 038

Victor A. TITUS and The Titus & Murphy Law Firm, Petitioner–Appellant,

v.CITY OF ALBUQUERQUE, Respondent–Appellee.

No. 29,461.

Court of Appeals of New Mexico.

March 9, 2011.Certiorari Granted, No. 32,941, May 3, 2011.

Titus & Murphy Law Firm, Victor A. Titus, Farmington, NM, for Appellant.

City of Albuquerque, Robert M. White, City Attorney, Michael I. Garcia, Assistant City Attorney, Albuquerque, NM, for Appellee.

OPINION

CASTILLO, Judge.

{1} The City of Albuquerque (Albuquerque) originally enacted the Safe Traffic Operations Program (STOP) in 2005. Albuquerque, N.M., Ordinances ch. 7, art. XI, §§ 7–11–1 to –6 (2005) (as amended through 2009). Commonly referred to as the red light camera program, STOP involves the use of video detection equipment to monitor compliance with traffic signals and speed limits within the city. Violators are issued monetary fines. Victor A. Titus and the Titus and Murphy Law Firm (together referred to as Titus) are the appellants in this case. Titus was issued two separate fines for speeding, and both were upheld by a STOP hearing officer. Titus appealed to the district court and the hearing officers' decisions were affirmed. Titus now appeals from the district court's determination. We affirm.

I. BACKGROUND

{2} Red-light camera technology is relatively new. First introduced in Europe in the 1960s and 1970s, red light camera programs slowly expanded and, by the early 1980s, many other countries including Australia, Canada, and Israel, among others adopted the technology. Joel A. Christensen, Note, Wrong on Red: The Constitutional Case Against Red-light Cameras, 32 Wash. U. J.L. & Pol'y 443 (2010). In 1994, New York City was the first American municipality to use this technology. Id. Currently, there are red-light camera programs operating in more than four hundred American communities. Id. Albuquerque is one of these communities.

{3} The case before us deals with two speeding violations that allegedly occurred in Albuquerque and were observed by video detection equipment—one on October 1, 2006, and the other on August 30, 2007. Two separate vehicles were involved, and both were registered to Titus. Titus received notice of the alleged violations and the monetary fines associated with the violations, and he responded by requesting an administrative hearing in both cases.

{4} At those hearings, Titus did not contest the fact that the video equipment observed vehicles registered in his name speeding on the dates in question. Rather, Titus argued that he was not the driver of those vehicles and submitted evidence that he was not in Albuquerque on those dates. Titus's arguments were unavailing; STOP specifically provides that the registered owner of the vehicle observed violating STOP is strictly and vicariously liable for the violation. See Albuquerque, N.M., Ordinances ch. 7, art. XI, § 7–11–5(B). Titus also did not pursue any of the defenses recognized in STOP, see § 7–11–5(G), and he specifically declined to avail himself of the nomination defense. See §§ 7–11–5(D)(3) & (G). That is, Titus was unwilling or unable to nominate, or identify, the individual who was driving his vehicles on the dates of the violations.

{5} The hearing officer found that the vehicles registered to Titus violated STOP on the dates in question and ordered Titus to pay one hundred dollars for each violation. Titus appealed both decisions to the district court where he attacked the legality and constitutionality of STOP. The violations were consolidated and the hearing officer's decisions were affirmed.

II. DISCUSSION

{6} On appeal, Titus raises four issues: (1) whether STOP requires Albuquerque to prove the identity of the driver; (2) whether STOP is contrary to New Mexico's public nuisance statute; (3) whether STOP is preempted by the Motor Vehicle Code (MVC); and (4) whether STOP violates the New Mexico Constitution. We take each issue in turn.

{7} As a preliminary matter, we address the proper ordinance to be considered. Titus submitted only a partial copy of the STOP ordinance into the record proper, and that copy of the ordinance includes amendments through 2006. Albuquerque submitted a complete version of the ordinance as a supplement to the record proper, and that copy includes amendments through 2008. There are material differences between the 2006 and 2008 versions of the ordinance. The 2006 ordinance provides Albuquerque authority to seize vehicles “in the city with unpaid STOP fines” and to commence forfeiture proceedings against those vehicles. See Albuquerque, N.M. Ordinances ch. 7, art. XI, § 7–11–5(I) (2006). Albuquerque no longer retains this authority under the 2008 ordinance; the provisions granting Albuquerque this authority were removed from STOP through the 2008 amendments. In addition, the 2008 amendments significantly reduced the fines associated with STOP violations. Compare Albuquerque, N.M. Ordinances ch. 7, art. XI, § 7–11–5(H) (2006) with Albuquerque, N.M. Ordinances ch. 7, art. XI, § 7–11–5(H) (2008).

{8} At oral argument, the Court noted that the parties submitted different versions of the ordinance and asked for clarification as to which version of the ordinance controlled in light of the dates of Titus's violations. The parties agreed that the version of STOP submitted by Albuquerque controlled. For the following reasons, we hold the parties to this agreement.

{9} Typically, parties are bound by their stipulations. See Martinez v. Eight N. Indian Pueblo Council, Inc., 1997–NMCA–078, ¶ 16, 123 N.M. 677, 944 P.2d 906. Additionally, Titus's arguments implicate provisions within the STOP ordinance, specifically the findings and intent provisions that Titus failed to submit into the record proper, and Titus has not argued that the findings and intent section of STOP changed materially between 2006 and 2008. Finally, Titus makes only one argument that is contingent on language found only in the 2006 version of the statute: that STOP is unconstitutional because of the forfeiture and seizure provisions. As we explain below, that argument is not ripe for review. Accordingly, we will rely on the version of the STOP ordinance submitted by Albuquerque that includes amendments through 2008.

A. Standard of Review

{10} “Interpretation of an ordinance is a matter of law subject to our de novo review using the same rules of construction applicable to statutes.” Kirkpatrick v. Bd. of County Comm'rs of Santa Fe County, 2009–NMCA–110, ¶ 11, 147 N.M. 127, 217 P.3d 613. We review questions involving statutory interpretation, preemption, and constitutional challenges de novo. See Oldham v. Oldham, 2009–NMCA–126, ¶ 5, 147 N.M. 329, 222 P.3d 701 (“We review the district court's statutory interpretation and conclusions of law de novo.”), cert. granted, 2009–NMCERT–011, 147 N.M. 464, 225 P.3d 794; Weise v. Washington Tru Solutions, L.L.C., 2008–NMCA–121, ¶ 9, 144 N.M. 867, 192 P.3d 1244 (“Whether a state claim is preempted by federal law is a legal question that we review de novo.”); ACLU of N.M. v. City of Albuquerque (ACLU I), 2006–NMCA–078, ¶ 10, 139 N.M. 761, 137 P.3d 1215 (“We review constitutional challenges de novo.”).

B. Identity of the Driver

{11} Titus contends that Albuquerque should be required to prove the identity of the driver and should not be allowed to enforce a STOP violation against anyone other than the actual driver responsible for committing the violation. This is not, however, the law under STOP. Section 7–11–5(B) of STOP focuses on the vehicle that is observed committing the STOP violation and makes the registered owner of that vehicle strictly and vicariously liable for the monetary fine associated with the violation. Section 7–11–5(D)(3) allows vehicle owners like Titus, who deny they were driving the vehicle at the time of the violation, to disclaim responsibility for the offense and to nominate the actual driver. Section 7–11–5(G) allows the vehicle owner to assert any defense available at law including, but not limited to, that the vehicle was stolen, that the vehicle was being driven without permission, or that the title to the vehicle had been transferred. As noted above, Titus declined to nominate the actual driver of each vehicle or pursue any of these defenses.

{12} Titus claims that holding vehicle owners strictly and vicariously liable for STOP violations renders the ordinance internally inconsistent such that this Court should neither “sanction” nor “endorse” STOP, and he asks that we strike the ordinance down as written. Titus points to language in the findings and intent section of STOP—specifically the section stating that STOP was enacted to abate the threat posed by drivers who violate speed limits and who fail to comply with traffic signals. According to Titus, this language conflicts with the enforcement provisions of STOP that render vehicle owners strictly liable for the drivers' violations.

{13} We do not see the conflict in these provisions. The owner of a vehicle generally controls who drives the vehicle and is, in many if not most instances, also the driver. Furthermore, and as previously described, in the event the owner is not the driver, STOP provides procedural mechanisms that permit vehicle owners to disclaim responsibility for the STOP violation and to avoid penalty. We are unpersuaded by Titus's objections to the nomination process. Other than the naked assertion that the nomination process is “offensive to the American value of fundamental fairness,” Titus fails to cite any authority that casts doubt upon the legality of requiring a vehicle owner who denies responsibility for a STOP violation to nominate the party responsible or accept the fine. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep't, 1998–NMCA–078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (this Court will not consider propositions that are unsupported by citation to authority).

C. The New Mexico Nuisance Statute

{14} Titus...