Espinoza v. City of Albuquerque
Espinoza v. City of Albuquerque
Opinion
{1} This case requires us to resolve whether the New Mexico Forfeiture Act (NMFA), NMSA 1978, §§ 31-27-1 to -11 (2002, as amended through 2015), preempts the City of Albuquerque's (the City) civil forfeiture ordinance, Albuquerque, N.M., Rev. Ordinances ch. 7, art.VI, §§ 7-6-1 to -7 (1992, as amended through 2014) (the Ordinance). Concluding that it does, we reverse the district court's judgment and order denying Wilfredo Espinoza's (Plaintiff) verified petition for writ of mandamus, and dismissing his complaint for declaratory and injunctive relief.
BACKGROUND
{2} In 2016 the City seized Plaintiff's vehicle pursuant to the Ordinance, which provides that a motor vehicle "is hereby declared to be a nuisance and subject to immediate seizure and forfeiture" if the vehicle is "[o]perated by a person in the commission of a DWI offense" or "by a person whose license is suspended or revoked" as a result of a DWI conviction or *1273 arrest. Albuquerque, N.M., Rev. Ordinance § 7-6-2. Plaintiff sued the City seeking (1) a declaration that the Ordinance is in "violation of the [NMFA,]" (2) a permanent injunction prohibiting the City from enforcing the Ordinance, and (3) an order requiring the City to return Plaintiff's vehicle to him. The City answered and stated, among other things, that the NMFA does not apply to the Ordinance, after which Plaintiff filed a verified petition for writ of mandamus and prohibition and motion for judgment on the pleadings. After briefing and a hearing on the matter, the district court entered a final judgment and order finding that the NMFA "does not preempt or limit in any way the City of Albuquerque's ordinance[.]" The court dismissed Plaintiff's complaint and denied the petition. This appeal followed.
DISCUSSION
{3} The sole issue presented by this appeal is whether the NMFA preempts the Ordinance. Whether a municipal ordinance enacted by a home-rule municipality is preempted by state law "requires us to construe together a constitutional amendment, the statutes, and an ordinance, which involves a question of law reviewed de novo."
Prot. & Advocacy Sys. v. City of Albuquerque
,
The New Mexico Forfeiture Act
{4} The New Mexico Legislature enacted the NMFA in 2002 and substantially revised it in 2015. Of particular importance are the amendments made to Section 31-27-2, enumerating the purposes of the NMFA. Prior to 2015, the stated purposes of the NMFA were to "(1) make uniform the standards and procedures for the seizure and forfeiture of property subject to forfeiture[,] and (2) protect the constitutional rights of persons accused of a crime and of innocent persons holding interests in property subject to forfeiture." Section 31-27-2(A) (2002). The Legislature expounded upon the NMFA's purposes in the 2015 amendments. In addition to the existing two purposes, the NMFA is intended to "(3) deter criminal activity by reducing its economic incentives; (4) increase the pecuniary loss from criminal activity; (5) protect against the wrongful forfeiture of property; and (6) ensure that only criminal forfeiture is allowed in [New Mexico]." Section 31-27-1(A)(3-6).
{5} To that end, the NMFA is a criminal forfeiture proceeding that allows property to be forfeited by a law enforcement officer when a person is arrested for and convicted of a criminal offense, and the state establishes by clear and convincing evidence that the property is subject to forfeiture because it was acquired through the commission of the criminal offense, or it was an instrumentality that the person used in the commission of the criminal offense. See § 31-27-4(A), (B).
{6} The state may seize property prior to a person's conviction for a criminal offense only under certain circumstances. Section 31-27-4(D), (E). The court can issue a preliminary order to seize property after determining that there is a "substantial probability" that (1) the state will be able to prove the property is subject to forfeiture; (2) the property will be destroyed, removed from the state, or otherwise made unavailable if the court does not enter the order permitting seizure; and (3) the need to preserve the property through the order outweighs the hardship to the owner and those known to claim an interest in the property. Section 31-27-4(D). Property may be seized without the preliminary order only if (1) the seizure is incident to a lawful arrest for a crime, or a search conducted pursuant to a search warrant and the arresting officer has probable cause to believe both that property is subject to forfeiture and that the arrested or search person is an owner of the property; (2) the seized property is the subject of a judgment in favor of the state; or (3) the officer has probable cause to believe both that the property is subject to forfeiture and that the delay caused by obtaining a preliminary order *1274 would result in the removal or destruction of the property. Section 31-27-4(E).
{7} The NMFA requires that "[w]ithin thirty days of making a seizure of property or simultaneously upon filing a related criminal indictment, the state shall file a complaint of ancillary forfeiture proceedings or return the property to the person from whom it was seized." Section 31-27-5(A). Those that claim an interest in the property must then answer the complaint, Section 31-27-6(A), and following the trial for the criminal offense, a forfeiture proceeding may begin. Section 31-27-6(C). During the proceeding, the state has the burden of proving, by clear and convincing evidence, that (1) the person whose property is alleged to be subject to forfeiture is an owner of the property; (2) the criminal prosecution of the owner of the property resulted in a conviction; and (3) the value of the property to be forfeited does not reasonably exceed the monetary gain derived from the crime, the monetary loss caused by the crime, or the value of the convicted owner's interest in the property. Section 31-27-6(F),(G).
{8} If the state meets its burden, the court enters a judgment of forfeiture. Section 31-27-6(G). After the closing of the forfeiture proceeding, "the person whose property was forfeited may petition the court to determine whether the forfeiture was unconstitutionally excessive," and "grossly disproportional to the seriousness of the criminal offense for which the person was convicted[,]" requiring the court to consider a host of factors, including the seriousness of the crime and its impact on the community, and the sentence imposed for the commission of the crime. Section 31-26-6 (K), (L), (M).
{9} Finally, the NMFA describes the processes whereby the state acquires title to the forfeited property, as well as the sale of the forfeited property, and the disposition of the proceeds from the sale of the forfeited property, which is to be distributed into the state's general fund. Section 31-27-7.
The City's Forfeiture Ordinance
{10} The Ordinance permits the City to subject motor vehicles to "immediate seizure and forfeiture" if they are:
(A) Operated by a person in the commission of a DWI offense ... and has, on at least one prior occasion, been arrested, summonsed or convicted for (i) an offense of driving under the influence of an intoxicating liquor or drugs in any jurisdiction, or (ii) homicide by vehicle or great bodily harm by vehicle ... while under the influence of intoxicating liquor or while under the influence of any drug and/or[;]
(B) Operated by a person whose license is suspended or revoked as a result of conviction for driving while intoxicated or suspended or revoked as a result of a driving while intoxicated arrest.
Albuquerque, N.M., Rev. Ordinance § 7-6-2. The Ordinance allows for seizure by court order, or without such order if the seizure is incident to an arrest of the driver for driving while intoxicated or driving while his or her license is suspended or revoked as a result of an arrest for driving while intoxicated. Albuquerque, N.M., Rev. Ordinance § 7-6-5(A), (B).
{11} Once seized, the arresting officer serves a "Notice of Forfeiture" to the person from whom the vehicle was seized. Albuquerque, N.M., Rev. Ordinance § 7-6-5(D). The owner may then request a hearing in front of a city hearing officer-that is "informal and not bound by the technical rules of evidence"-to determine whether the officer had probable cause to seize the vehicle. Albuquerque, N.M., Rev. Ordinance § 7-6-5(D)(8). If so, "proceedings for an order for forfeiture shall be instituted promptly.
{12} Finally, the Ordinance provides an "innocent owner defense," which allows any owner or co-owner of the property an opportunity to demonstrate by a preponderance of the evidence that he or she "could not have reasonably anticipated that the vehicle could be used in a manner constituting" a nuisance. Albuquerque, N.M., Rev. Ordinance § 7-6-7(A) (internal quotation marks omitted). If the owner makes this prima facie showing, "the burden is upon the city to prove by a
*1275
preponderance of the evidence that the owner could have reasonably anticipated that the vehicle could be used in the manner constituting the nuisance."
Preemption
{13} Plaintiff argues that several provisions of the Ordinance are inconsistent with the NMFA, and the NMFA thereby preempts the Ordinance. The City relies upon Section 31-27-2(B)(1) of the NMFA and argues that the Ordinance does not conflict with the NMFA because "the Legislature allowed municipalities the decision to opt-in to the [NMFA.]" Section 31-27-2(B)(1) states: "The [NMFA] applies to seizures, forfeitures and dispositions of property subject to forfeiture pursuant to laws that specifically apply the [NMFA.]" Based upon this statutory language, and the lack of language in the Ordinance expressly providing that the NMFA applies to the Ordinance, the City maintains that the NMFA cannot preempt the Ordinance. Indeed, the City maintains that the "other provisions of the [NMFA], are irrelevant since the [NMFA] does not apply to the Ordinance."
{14} We agree with Plaintiff, and therefore we begin with the law of preemption in New Mexico. We then explain why the City's argument is incorrect. "A municipality ... may exercise all legislative powers and perform all functions not expressly denied by general law or charter." N.M. Const. art. X, § 6 (D). The City "no longer has to look to the [L]egislature for a grant of power to act, but only looks to legislative enactments to see if any express limitations have been placed on their power to act." NMFE,
The NMFA Is a General Law
{15} A general law is "one that [a]ffects the community at large, as opposed to a local law that deals with a particular locality."
Casuse
,
{16} An example of a general law is a statute governing utility rate-making, which is a matter of statewide rather than local concern "because a proposed service rate for one municipality can affect rates to other municipalities in the state."
City of Albuquerque v. N.M. Pub. Serv. Comm'n
(
Public Service Commission
),
*1276
Kane v. City of Albuquerque
,
{17} Like the statutes at issue in Public Service Commission and NMFE , the NMFA applies to and thereby affects all New Mexicans. See § 31-27-2(A)(6) (explaining that the NMFA is intended to ensure that "only criminal forfeiture is allowed in this state," i.e. statewide ). The Legislature intended that the extinguishment of civil forfeiture and the existence of specific procedures for only criminal forfeiture proceedings apply across the state. See § 31-27-2(A)(1) (explaining that one purpose of the NMFA is to " make uniform the standards and procedures for the seizure and forfeiture of property" (emphasis added) ). Both its protective and punitive aspects are intended to apply to all persons in New Mexico. See Section 31-27-2(B)(1) (making the NMFA applicable to all "seizures, forfeitures, and dispositions of property subject to forfeiture"); § 31-27-2(A)(2) (recognizing that the NMFA is intended to protect the rights of persons whose property is subject to forfeiture and of innocent owners holding interests in property subject to forfeiture, not only to target and thereby deter the conduct of those engaged in criminal activity). We, therefore, conclude that the NMFA is a general law because it applies generally throughout the state, relates to a matter of statewide concern, and impacts everyone across the entire state.
The NMFA Expressly Denies Home-Rule Municipalities Authority to Enforce Civil Asset Forfeiture Proceedings
{18} Having concluded that the NMFA is a general law, we next consider whether it "expressly denies" the City the authority to maintain and enforce the Ordinance.
Kane
,
{19} We begin by examining the clearest expression of the Legislature's intent when enacting a statute: the expressly stated purposes of the NMFA.
See
Sims v. Sims
,
{20} In several specific ways, the procedures of the Ordinance for seizing and forfeiting a person's property are at odds with the procedures set forth in the NMFA. First, the NMFA requires the person to be convicted of the criminal offense to which the property is tied before that property becomes potentially subject to forfeiture. See § 31-27-4(A) (providing that a person's property is subject to forfeiture if the person "was arrested for an offense to which forfeiture applies[,]" and "the person is convicted by a criminal court of the offense"); § 31-27-5(A) (requiring that the state, within thirty days of seizing the property or filing a related criminal indictment, file a complaint of ancillary forfeiture proceedings or return the property to the person from whom it was seized). The Ordinance, on the other hand, allows for forfeiture of property upon a person's arrest-before conviction-for a criminal offense. See Albuquerque, N.M., Rev. Ordinance §§ 7-6-2, -5(B) (providing that a vehicle is subject to "immediate seizure and forfeiture" if "seizure is incident to an arrest of the driver"). Nothing in the Ordinance requires that the person be convicted of DWI or driving on a revoked or suspended license as a result of a DWI before the officer seizes and subjects the vehicle to forfeiture, or that criminal proceedings occur contemporaneous with the City's effort to forfeit the vehicle.
{21} Second, the NMFA carefully sets out the procedure for replevin hearings-initiatory proceedings at which an individual who claims an interest in the property seized can seek its return prior to the resolution of the related criminal matter- see § 31-27-4.1, whereas the Ordinance specifically states that seized vehicles "shall not be subject to replevin," but are "deemed to be in the custody of the [p]olice [d]epartment." Albuquerque, N.M., Rev. Ordinance § 7-6-5(C).
{22} Third, the NMFA places the burden on the state to prove that the property owner "had actual knowledge that the property was subject to forfeiture" because of its use in the course of criminal activity. Section 31-27-7.1(F)(1). This is in stark contrast to the Ordinance, which places the burden of proof on the owner of the property to prove that he or she "could not have reasonably anticipated that the vehicle could be used in a manner constituting" a public nuisance. Albuquerque, N.M., Rev. Ordinance § 7-6-7(A). 1 Beyond that, the NMFA calls for a different burden of proof than the Ordinance. See § 31-27-7.1(F)(1) (proving by clear and convincing evidence); Albuquerque, N.M., Rev. Ordinance § 7-6-7(A) (demonstrating preponderance of evidence).
{23} Finally, as another example, the NMFA provides the person whose property is subject to forfeiture an opportunity to contest the conclusion of the proceeding. At the close of a forfeiture proceeding conducted in accordance with the procedures of the NMFA, the person whose property was forfeited may petition the court to determine whether the forfeiture was "unconstitutionally excessive" and "grossly disproportional to the seriousness of the criminal offense for *1278 which the person was convicted" in light of several factors, including the impact of the crime on the community and the sentence imposed for the commission of the crime. Section 31-27-6(K), (L), (M). Under the Ordinance, there exists no means for the person to contest the conclusions drawn at the close of the probable cause hearing, nor does the Ordinance provide the presiding official any discretion to consider whether forfeiture is a proportionate response to the factual nuances of the circumstances presented, critically, the seriousness of the crime. Rather, at the close of the "informal" hearing where it is determined that the seizure was supported by probable cause, "proceedings for an order for forfeiture shall be instituted promptly." Albuquerque, N.M., Rev. Ordinance § 7-6-5(D).
{24} The Ordinance and the NMFA are functionally at odds with one another. The NMFA constrains the circumstances under which a person's property may be subject to permanent forfeiture, for example, by requiring conviction (not merely arrest) prior to the initiation of forfeiture proceedings, by allowing persons to seek replevin, by shifting the burden of proof to the state, by heightening the burden of proof before the court can conclude that the property is subject to forfeiture, and by allowing the person to petition the court to determine whether a finding of forfeiture was unconstitutionally excessive. The Ordinance, however, simply-and far more strictly-deems the property associated with the named conduct forfeitable without further consideration. See Albuquerque, N.M., Rev. Ordinance § 7-6-2 (providing that a motor vehicle operated under the described circumstances "is hereby declared to be a nuisance and subject to immediate seizure and forfeiture"). Such a per se approach to seizing and forfeiting property owned by individuals is wholly contrary to the language and spirit of the NMFA. Thus, because the Legislature intended to eliminate civil forfeiture and the Ordinance allows for it, and because the procedures set forth in the Ordinance are different from and contrary to the procedures outlined in the NMFA, we conclude that the Ordinance is so inconsistent with the terms of the NMFA that the NMFA is the equivalent of an express denial of the City's authority to enforce the Ordinance.
{25} We find further support for our analysis of the NMFA's purposes and provisions in our case law. In
ACLU
,
{26} Like the general law at issue in
ACLU
, the NMFA comprehensively addresses asset forfeiture by expressly limiting the circumstances under which such proceedings may occur-namely, only in the criminal context-and by detailing each step of the seizure and forfeiture process. It sets forth specific procedures for each step of the process, including (1) when an order to seize potentially forfeitable property may be issued, Section 31-27-4; (2) what documentation of receipt of property the property owner must receive following seizure, Section 31-27-4.1(A); (3) under what circumstances a party may move the court to issue a writ of replevin and what responsive pleadings are permitted, Section 31-27-4.1(B),(C); (4) the timing and form of the complaint for the state to initiate a permanent forfeiture of property, as well as the requirements for service of process, Section 31-27-5; (5) the mechanisms available for persons who claim an interest in seized and forfeited property and the rules of procedure and burdens of proof to be applied in the forfeiture proceeding along with the option to appeal the district court's decision following the proceeding, Section 31-27-6; and (6) the disposition of forfeited property and depositing of proceeds from the sale of forfeited property into the state's general fund, Section 31-27-7. As in
ACLU
, we conclude that the Legislature, through these
*1279
extensive, detailed, and comprehensive provisions has "exhaustively addresse[d]" the existence and manner of enacting and enforcing asset forfeiture proceedings.
ACLU
,
The NMFA Does Not Operate as an "Opt-In" Statute as the City Argues
{27} Finally, we address the City's argument. The City relies upon Section 31-27-2(B)(1) of the NMFA and argues that the Ordinance does not conflict with and therefore cannot be preempted by the NMFA because "the Legislature allowed municipalities the decision to opt-in to the [NMFA]." Section 31-27-2(B)(1) states: The NMFA "applies to seizures, forfeitures and dispositions of property subject to forfeiture pursuant to laws that specifically apply the [NMFA.]" Because the Ordinance does not contain language expressly providing that the NMFA applies, the City maintains that the NMFA cannot preempt the Ordinance.
{28} We disagree, based first upon the fact that the City's interpretation of Section 31-27-2(B)(1) subverts the NMFA's clearly stated purpose, that is, to ensure that only criminal forfeiture exists in New Mexico. Under the City's interpretation, a municipality wishing to enact a civil forfeiture law could entirely avoid the NMFA and the stated rationale that underpins it, along with all of its requirements concerning forfeiture proceedings by simply not mentioning the NMFA in a given ordinance and in so doing, allow non-criminal asset forfeiture-such as that embodied by the City's Ordinance-to continue from municipality to municipality.
{29} Second, whether the NMFA only applies to statutes "that specifically apply the [NMFA]", as the City interprets Section 31-27-2(B)(1), is an issue separate and distinct from preemption. We view the related language to mean that the Legislature may, in another statute, provide that the NMFA applies to the statute in order to incorporate its procedures and penalties into the substance of the statute.
See, e.g.
, NMSA 1978, § 60-7A-5(C) (2002) (penalizing the unlawful manufacture or sale of alcoholic beverages or any money "that is the fruit or instrumentality" of such by subjecting it to forfeiture and providing that "the provisions of the [NMFA] apply to the seizure, forfeiture[,] and disposal of such property"); NMSA 1978, § 17-2-20.1(A), (C) (2002) (providing that "[t]he provisions of the [NMFA] apply to the seizure, forfeiture and disposal of property" when "used as instrumentalities in the commission of" possessing, taking, or attempting to take big game during closed season). The latter concept-preemption-is an issue that arises
any
time two governing bodies attempt to regulate the same subject matter. The inferior of the two governing bodies, the local government, cannot exempt itself from the application of the sovereign's laws.
See
Casuse
{30} Finally, if the City is correct that the statute only applies to cities that include in their ordinances such similar words as "and the NMFA applies," courts would be precluded from engaging in a preemption analysis at all for any statute with a provision similar to Section 31-27-2(B)(1). As previously described, the analysis for determining whether a law is a general law requires us to examine the effect of a legislative enactment-whether it affects all of the inhabitants of the state and is therefore of statewide concern, or whether it affects only the inhabitants of the municipality and is therefore of only local concern.
Haynes
,
{31} We conclude that the NMFA denies the City's authority to seize and forfeit property under the Ordinance because the enforcement of the Ordinance frustrates, and, in fact, completely contradicts the Legislature's intent in amending the NMFA. Thus, the NMFA preempts the Ordinance in its entirety.
CONCLUSION
{32} We conclude that the NMFA preempts the Ordinance and reverse the judgment and order of the district court.
{33} IT IS SO ORDERED.
WE CONCUR:
LINDA M. VANZI, Chief Judge
HENRY M. BOHNHOFF, Judge
The provision of the Ordinance requiring owners of seized property to prove their innocence was recently found to be an unconstitutional procedural due process violation.
See
Harjo v. City of Albuquerque
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.