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Espinoza v. City of Albuquerque

Court of Appeals of New Mexico

December 5, 2018

WILFREDO ESPINOZA, Plaintiff-Appellant,
CITY OF ALBUQUERQUE, Defendant-Appellee.


          Mescall Law Firm, P.C. Thomas J. Mescall, II Phillip Patrick Baca Albuquerque, NM for Appellant

          Jessica M. Hernandez, City Attorney Jeffrey B. Driggers, Assistant City Attorney Andrew S. Coon, Assistant City Attorney Albuquerque, NM for Appellee

          C. Brad Lane-Cates, Attorney Brad Cates Fairacres, NM Institute for Justice Robert Frommer Arlington, VA for Amici Curiae Arlene Harjo



         {¶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.


         {¶2} In 2016 the City seized Plaintiffs 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 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 Plaintiffs 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 I 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 Plaintiffs complaint and denied the petition. This appeal followed.


         {¶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, 2008-NMCA-149, ¶ 43, 145 N.M 156, 195 P.3d 1. "Interpretation of constitutional clauses begins with the language of the text[, ]" as does our construction of statutes. New Mexicans for Free Enterprise (NMFE) v. City of Santa Fe, 2006-NMCA-007, ¶ 11, 138 N.M. 785, 126 P.3d 1149. We begin with the language of the statute, "resorting to other sources when necessary, and ultimately seeking to determine and give effect to the intent of the [L]egislature." Id.

         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 I 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 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 ...

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