ACLU OF NEW MEXICO V. CITY OF
ALBUQUERQUE, 2008-NMSC-045, 144 N.M. 471, 188 P.3d 1222
AMERICAN CIVIL LIBERTIES UNION
OF NEW MEXICO and PETER G. SIMONSON,
Plaintiffs-Petitioners,
v.
CITY OF ALBUQUERQUE,
Defendant-Respondent.
SUPREME COURT OF NEW MEXICO
2008-NMSC-045, 144 N.M. 471, 188 P.3d 1222
ORIGINAL PROCEEDING ON CERTIORARI, Theresa M. Baca,
District Judge
Released for publication July 29, 2008
Kennedy & Han, P.C., Paul J. Kennedy,
Albuquerque, NM, Sanders & Westbrook, P.C., Maureen A. Sanders,
Albuquerque, NM, ACLU of New Mexico, George L. Bach, Jr., Albuquerque, NM, The
Revo Law Firm, P.A., Roger I. Smith, Albuquerque, NM, Ousama M. Rasheed Law
Office, Ousama M. Rasheed, Albuquerque, NM, for Petitioners
Office of the City Attorney, Robert M.
White, Peter H. Pierotti, Albuquerque, NM, for Respondent
RICHARD C. BOSSON, Justice. WE CONCUR:
EDWARD L. CHÁVEZ, Chief Justice, PATRICIO M. SERNA, Justice, PETRA JIMENEZ
MAES, Justice, MICHAEL E. VIGIL, Judge (sitting by designation)
AUTHOR: RICHARD C. BOSSON
{1} This appeal raises
questions as to the continued viability of New Mexico’s enduring justiciability
principles that govern who has standing to bring suit in our state courts. Our
current standing doctrine generally requires litigants to allege three
elements: (1) they are directly injured as a result of the action they seek to
challenge; (2) there is a causal relationship between the injury and the
challenged conduct; and (3) the injury is likely to be redressed by a favorable
decision. These requirements are known in short form as injury in fact,
causation, and redressability, and are derived from federal standing
jurisprudence.
{2} Plaintiffs seek to
mount a pre-enforcement constitutional challenge to an ordinance passed by the
City of Albuquerque, and they ask this Court to perform a comprehensive
overhaul of New Mexico standing jurisprudence for them to do so. Specifically,
Plaintiffs encourage us to abandon the traditional three federally-derived
elements and instead implement an approach whereby courts would evaluate four
“prudential factors” to determine whether a litigant has standing to sue. We do
not find occasion in this case to depart from our traditional standing
analysis, and therefore we affirm the Court of Appeals’ decision holding that
Plaintiffs lack standing to challenge the City’s ordinance.
{3} The ACLU and two
named Plaintiffs filed a complaint for declaratory and injunctive relief
challenging the constitutionality of the City’s Ordinance Bill No. O-05-113,
which amended the City’s ordinance providing for civil forfeiture of vehicles
driven by individuals with multiple previous DWI arrests or convictions. This
Court upheld the constitutionality of the previous version of the Ordinance in
City
of Albuquerque ex rel. Albuquerque Police Dep’t v. One (1) 1984 Chevy Ut.,
2002-NMSC-014,
132 N.M. 187,
46 P.3d 94. The challenged amendments provide for
civil forfeiture of vehicles driven by individuals who have been arrested for
DWI with
no previous offenses. The Plaintiffs filed their complaint on
the same day the challenged amendments became effective and obtained an
injunction; thus, the City has never enforced the Ordinance as amended.
{4} The amended
Ordinance declares that a vehicle “[o]perated by a person who has been arrested
for an offense of driving under the influence of intoxicating liquor or drugs”
is a nuisance and subjects such a vehicle to “temporary seizure or permanent
forfeiture.” Albuquerque, N.M., Ordinance § 7-6-2 and -4 (16th Council). The
owner of a seized vehicle may request an administrative hearing at which a city
hearing officer “shall only determine whether the law enforcement officer had
probable cause to seize the vehicle.” Section 7-6-5(D)(8). If the hearing
officer determines that there was probable cause to seize the vehicle,
“proceedings for an order for forfeiture shall be instituted promptly.”
Id.
{5} The City filed
several motions, including a motion to dismiss for lack of standing, and
Plaintiffs filed a motion for permanent injunction. The district court denied
the City’s motion to dismiss and granted Plaintiffs’ motion for permanent
injunction, finding that the Ordinance provides insufficient procedural due
process. Specifically, the court found that the Ordinance is constitutionally
defective because it states that the only determination to be made at the
administrative hearing is “whether the law enforcement officer had probable
cause
to seize the vehicle,” as opposed to whether there was probable
cause
for the arrest. The City appealed the district court’s decision,
and the Court of Appeals reversed, finding that Plaintiffs lacked standing to
challenge the ordinance.
See ACLU v. City of Albuquerque (
ACLU II),
2007-NMCA-092,
142 N.M. 259,
164 P.3d 958. We granted certiorari to clarify the
law of standing as it applies in this case. We agree with the Court of Appeals
that Plaintiffs lack standing, and we therefore affirm.
{6} At the inception of
the case, there were three Plaintiffs, the ACLU and two individuals. One of the
individual plaintiffs was dismissed by stipulation, leaving Peter Simonson, the
executive director and a member of the ACLU, as the remaining named Plaintiff.
In the complaint, Simonson alleged that his “rights, status or other legal
relations are affected by [the Ordinance].” The ACLU alleged that it had
“standing to vindicate the public interest in matters of great public . . .
importance,” and to “vindicate the interest of its members who will be subject
to [the Ordinance], and whose rights, status or other legal relations are
affected by [the Ordinance].” Whether Plaintiffs have standing to challenge the
Ordinance is a matter of law subject to de novo review.
See Forest Guardians
v. Powell,
2001-NMCA-028, ¶ 5,
130 N.M. 368,
24 P.3d 803.
{7} The Court of
Appeals began its standing analysis by stating: “Under our Constitution, in
order to have standing, a plaintiff must establish that there is (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.”
ACLU II,
2007-NMCA-092, ¶ 7 (quoted authority omitted).
Plaintiffs take issue with this statement, arguing that the Court of Appeals
incorrectly characterized standing as a constitutional requirement. According
to Plaintiffs, while standing in federal court is a jurisdictional threshold
set by Article III of the United States Constitution, limiting the subject
matter jurisdiction of federal courts to “cases and controversies,” standing in
state court is an entirely different matter. Under the New Mexico Constitution,
state courts are courts of general jurisdiction, and our constitution contains
no analogue to the federal “cases and controversies” language.
See John Does
I through III v. Roman Catholic Church, 1996- NMCA-094, ¶ 26,
122 N.M. 307,
924 P.2d 273. Thus, Plaintiffs claim that standing in state court is a
prudential matter rather than a jurisdictional requirement dictated by our
constitution.
{8} Based on the
proposition that standing in state court is a prudential matter, Plaintiffs
argue for a fundamental revision of our law of standing. They advocate an
abandonment of the three federally-derived traditional standing requirements—
injury in fact, causation, and redressability—which are borrowed to a large
degree from federal standing jurisprudence. In place of those requirements,
Plaintiffs would have us adopt four “prudential factors,” drawn from prior New
Mexico appellate decisions on standing. These factors are: (1) the degree of
potential harm to the plaintiff and the seriousness of the constitutional or
legal challenge; (2) the public importance of the issue; (3) the extent to
which the plaintiff can bring to bear the concrete adverseness that will
sharpen the issue for the court; and (4) with respect to organizational
plaintiffs, the degree of difficulty in obtaining individual plaintiffs to step
forward on an issue of public importance. According to Plaintiffs, our state
courts should evaluate and weigh these factors in deciding whether a plaintiff
has standing to sue in a given case.
{9} We agree with
Plaintiffs that standing in our courts is not derived from the state constitution,
and is not jurisdictional.
1
As we recognized in
New Mexico Right to Choose/NARAL v. Johnson,
1999-NMSC-005, ¶ 12,
126 N.M. 788,
975 P.2d 841, “New Mexico state courts are
not subject to the jurisdictional limitations imposed on federal courts by
Article III, Section 2 of the United States Constitution.” Indeed, this Court
has exercised its discretion to confer standing and reach the merits in cases
where the traditional standing requirements were not met due to the public
importance of the issues involved.
See Baca v. N.M. Dep’t of Pub. Safety,
2002-NMSC-017, ¶ 4,
132 N.M. 282,
47 P.3d 441 (stating that the validity of the
Concealed Handgun Carry Act raised a constitutional question of great public
importance, and electing to confer standing on that basis);
State ex rel.
Sego v. Kirkpatrick,
86 N.M. 359, 363,
524 P.2d 975, 979 (1974)
(constitutionality of partial vetoes by the Governor was a matter of
substantial public interest);
John Does I through III,
1996-NMCA-094, ¶
27 (noting that because the absence of standing in such cases did not deprive
this Court of jurisdiction to decide the matter, the denial of standing could
not have been based on constitutional limitations on the court’s power). Thus,
the Court of Appeals’ suggestion that standing is constitutionally based,
though perhaps grounded in similar statements from past cases, misapprehends
the true nature of standing in state court as compared to federal court.
2 See generally Helen
Herschkoff,
State Courts and the “Passive Virtues”: Rethinking the Judicial
Function, 114 Harv. L. Rev. 1833 (2001) (discussing the difference between
standing in state courts and federal courts).
{10} While we recognize
that standing in our state courts does not have the constitutional dimensions
that are present in federal court, New Mexico’s standing jurisprudence
indicates that our state courts have long been guided by the traditional
federal standing analysis. For example, as far back as the early part of the
twentieth century, in cases addressing the standing of taxpayers to challenge
expenditure of government funds, this Court has required allegations of direct
injury to the complaining party for that party to properly seek an injunction
or challenge the constitutionality of legislative acts. Indeed, this Court
noted in
Asplund v. Hannett:
“Injunction is not a remedy which
may be invoked by the citizen for the purpose of controlling public officers or
tribunals in the exercise of their functions. In order to sustain it, the
plaintiff must show that he has a special interest, in respect to which he will
suffer special injury. It is not enough that the community in which he resides
will be injuriously affected by some governmental or legislative action.”
31 N.M. 641, 656, 249 P. 1074, 1079 (1926) (quoting Story’s
Eq. Jur. (14th ed.) § 14); see also Eastham v. Pub. Employees Ret. Ass’n Bd.,
89 N.M. 399, 404-06, 553 P.2d 679, 684-86 (1976) (plaintiffs who brought action
for declaration that Legislative Retirement Act was unconstitutional and for
issuance of injunction against payment of annuities under that Act did not have
standing, as potential retirees under the program or as citizens and
taxpayers, to bring the action); State ex rel. Overton v. N.M. State
Tax Comm’n, 81 N.M. 28, 31, 462 P.2d 613, 616 (1969) (noting that “there
must be a real and not a theoretical question, and the party raising it must
have a real interest in the question before a declaratory judgment action will
lie”). Thus, at least as a matter of judicial policy if not of jurisdictional
necessity, our courts have generally required that a litigant demonstrate
injury in fact, causation, and redressability to invoke the court’s authority
to decide the merits of a case.
{11} Of most significance
in the instant case is the injury in fact requirement. Injury in fact has
evolved in New Mexico jurisprudence in response to developments in federal law
that created a more flexible standard, departing from older, more formalistic
notions of a “legally protected interest.”
See De Vargas Sav. & Loan
Ass’n v. Campbell,
87 N.M. 469, 471,
535 P.2d 1320, 1323 (1975) (noting
that “[t]he flaw in the ‘legal interest’ test is that it requires a court to
examine the merits of a case, while the purpose of the standing question is
quite distinct—to protect against improper plaintiffs”). In
De Vargas,
this Court established the contours of the modern injury in fact standard that
has since guided New Mexico courts. We noted that, though “New Mexico has
always required allegations of direct injury to the complainant to confer
standing, . . . once the party seeking review alleges he himself is among the
injured, the extent of injury can be very slight.”
Id. at 472, 535 P.2d
at 1323. Moreover, we have held that a litigant need not suffer the actual
effects of the challenged action or statute, such as arrest and prosecution
under a criminal statute, to meet the injury in fact requirement.
See ACLU
v. City of Albuquerque (
ACLU I),
1999-NMSC-044, ¶ 9,
128 N.M. 315,
992 P.2d 866. Rather, the litigant need only show that he is “imminently
threatened with injury,”
De Vargas, 87 N.M. at 473, 535 P.2d at 1324,
or, put another way, that he is faced with “a real risk of future injury,” as a
result of the challenged action or statute.
Corn v. N.M. Educators Fed.
Credit Union,
119 N.M. 199, 202, 889 P.3d 234, 237 (Ct. App. 1995),
overruled
on other grounds by Trujillo v. City of Albuquerque,
1998-NMSC-031,
125 N.M. 721,
965 P.2d 305.
{12} Further, like
federal law, our courts have allowed organizations to sue if their individual
members would have standing in their own right.
See, e.g.,
Nat’l
Trust for Historic Pres. v. City of Albuquerque,
117 N.M. 590, 594,
874
P.2d 798, 802 (Ct. App. 1994). We have also held that a litigant may bring an
action on behalf of a third party if the litigant demonstrates the following
three criteria: (1) the litigant has “suffered an ‘injury in fact,’ thus giving
him or her a ‘sufficiently concrete interest’ in the outcome of the issue in
dispute;” (2) the litigant has “a close relation to the third party;” and (3)
there exists “some hindrance to the third party’s ability to protect his or her
interests.”
N.M. Right to Choose/NARAL,
1999-NMSC-005, ¶ 13 (
quoting
Powers v. Ohio, 499 U.S. 400, 411 (1991)). As discussed previously, the
great public importance doctrine exists as an overarching exception to all of
these general standing requirements, allowing this Court to reach the merits of
a case even when the traditional criteria for standing are not met, either by
an individual or an organizational plaintiff.
{13} Plaintiffs’
suggested “prudential factors” are an amalgamation of the above principles,
with the notable absence of the three traditional, federally-derived standing
requirements that form the jurisdictional threshold in federal courts.
See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560- 61 (1992) (stating that
U.S. Supreme Court precedent establishes the injury in fact, causation, and
redressability elements as “the irreducible constitutional minimum of
standing”). Plaintiffs argue that those three elements “have been roundly
criticized by the commentators in ways that should give this Court pause over
the wisdom of their wholesale adoption as state prudential standards.” As to
the injury in fact element, Plaintiffs state that it is “a singularly
unhelpful, even incoherent, addition to the law of standing,” but do not offer
an explanation as to why that is so. With regard to the causation component,
Plaintiffs assert that it is “much too closely tied to the merits, and fosters
the criticism that federal standing is not principled, but just a way of
pre-judging the merits while avoiding the merits.” Finally, regarding the
redressability element, Plaintiffs maintain that the difficulty in explaining
the difference between causation and redressability “seems to confound even the
Supreme Court.”
{14} While we acknowledge
the criticisms of the causation and redressability components, we are mainly
concerned here with the injury in fact requirement, as that is the point upon
which this case turns when the traditional three-prong test is applied.
3 Indeed, Plaintiffs implicitly
recognize this by making the elimination of the injury in fact element the
focal point of their suggested approach. In place of the requirement that a
litigant show a direct injury that is actual or imminent, Plaintiffs would
substitute an inquiry into the degree or magnitude of the potential harm to an
individual if an injury were to occur—the challenged ordinance were to be
enforced unconstitutionally—and the seriousness of the constitutional issues
involved.
{15} In support of their
contention that courts should look to the magnitude of potential harm instead
of the threat of injury to a particular plaintiff, Plaintiffs cite to two New
Mexico cases in which they assert the court found standing based on the seriousness
of the potential injury. In
De Vargas, the state supervisor of the
banking department granted authority to a Los Alamos building and loan
association to operate an office in Santa Fe. 87 N.M. at 470, 535 P.2d at 1321.
Several Santa Fe savings and loan associations challenged the supervisor’s
decision, claiming that they would suffer “undue competitive injury” if another
office was allowed to operate in Santa Fe.
Id. at 470, 473, 535 P.2d at
1321, 1324. This Court found that the alleged injuries were sufficient for the
Santa Fe savings and loan associations to attain standing as associations
“aggrieved and directly affected” by the banking department’s order.
Id.
at 473, 535 P.2d at 1324.
{16} In
Corn, a
workers compensation claimant challenged the attorneys’ fees cap in the Workers
Compensation Act, claiming that it violated the equal protection clause. 119
N.M. at 201, 889 P.2d at 236. The defendant claimed that the worker could not
demonstrate a direct threat of injury from the application of the attorneys’
fees cap to her case because she was still represented by counsel.
Id.
at 202, 889 P.2d at 237. The Court of Appeals disagreed, finding that the case
was seriously contested and of above-average complexity, and thus, the worker
could have been “required to pursue matters of impairment and permanent
disability without the aid of counsel because the cap prohibits her from
compensating counsel any further.”
Id. The court refused to take a rigid
approach to the concept of standing by requiring that the worker “actually
proceed without counsel, and suffer prejudice as a result, before she can raise
a constitutional challenge to the attorneys’ fees cap.”
Id. Thus, the
court held that the worker had sufficiently demonstrated a “real risk of future
injury due to the attorneys’ fees cap” to comply with the injury in fact
requirement for standing.
Id.
{17} Plaintiffs claim
that at the core of the holdings in
De Vargas and
Corn was the
court’s consideration that the potential injury could be very serious. In other
words, if the potential harm is of sufficient magnitude, then the threat of
such harm to some unknown person will be sufficient to confer standing without
requiring a direct injury, either actual or imminent, to a particular
plaintiff. With respect, we think Plaintiffs misread these opinions.
{18} Both
De Vargas
and
Corn explicitly focused on the direct nature of the threat of harm
to the particular plaintiff, not the magnitude of that harm. Indeed, both
courts expressly recognized that, once the plaintiff has alleged that he is
among those who are directly injured or imminently threatened with injury, the
alleged injury itself need only be slight.
De Vargas, 87 N.M. at 472,
535 P.2d at 1323;
Corn, 119 N.M. at 202, 889 P.2d at 237. In asserting
that
De Vargas and
Corn support an injury in fact standard that
evaluates the magnitude of potential injury rather than the direct nature of
the threat to the particular plaintiff, Plaintiffs overlook the fact that the
threat of harm in those cases was real and significant and was directly
traceable to the individual plaintiffs that were bringing suit; it was not a
general, undifferentiated threat of a hypothetical harm to some unidentifiable
person. Thus, we do not find support in these cases for Plaintiffs’ position
that the injury in fact element should not remain part of our standing
analysis.
{19} Though we recognize
there may be difficulties with the injury in fact requirement in certain cases,
we decline Plaintiffs’ invitation to do away with that element as part of our
general approach to standing, particularly as applied in the instant case.
Requiring that the party bringing suit show that he is injured or threatened
with injury in a direct and concrete way serves well-established goals of sound
judicial policy.
See Wis. Bankers Ass’n v. Mut. Sav. & Loan Ass’n,
291 N.W.2d 869, 875 n.1 (Wis. 1980) (noting that “Wisconsin courts generally
require that a plaintiff possess standing not as a jurisdictional prerequisite
but rather as a matter of sound judicial policy”). As Justice Kennedy explained
in his concurrence in
Lujan:
While it does not matter how many
persons have been injured by the challenged action, the party bringing suit
must show that the action injures him in a concrete and personal way. This
requirement is not just an empty formality. It preserves the vitality of the
adversarial process by assuring both that the parties before the court have an
actual, as opposed to a professed, stake in the outcome, and that the legal
questions presented . . . will be resolved, not in the rarified atmosphere of a
debating society, but in a concrete factual context conducive to a realistic
appreciation of the consequences of judicial action.
504 U.S. at 581 (quoted authority omitted). By establishing
injury in fact as part of a general approach to standing, our state court
justiciability policies serve “[t]he values of avoiding unnecessary
constitutional determinations and establishing proper relationships between the
judiciary and other branches of the . . . government.” 13A Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure
§ 3532.1, at 120 (2d ed. 1984) (quoted authority omitted).
{20} Beyond the strength
of the policies underlying the three-prong approach to standing, and
particularly the injury in fact requirement, that approach is deeply ingrained
in New Mexico jurisprudence. To abandon a test that has essentially formed the
basis of New Mexico’s entire body of case law on standing, a body of law that
has extensive historical roots, would require a highly compelling reason for
doing so. Plaintiffs simply do not supply us with such a reason. That the
federal approach is grounded in Article III constraints which do not apply to
our state courts is not enough to persuade us to change course. Nor do
Plaintiffs adequately explain how their suggested prudential factors can be
applied in any principled way by lower courts to avoid eviscerating the
standing requirement.
{21} Plaintiffs’ approach
seems to exchange a rule-based system that, though perhaps subject to
criticism, at least contains standards with identifiable contours and
boundaries, for an impulse-based, visceral type of evaluation. Thus, if lower
courts were directed to evaluate the seriousness of the potential harm, which
Plaintiffs essentially define as any constitutional harm, and the public
importance of the issue to determine standing, it is difficult to see how the
ultimate determination would not be merely a reflection of the whim of the
particular judge. Without a more concrete explanation of how Plaintiffs’
proposed factors provide meaningful and predictable guidelines for determining
whether a particular plaintiff has standing to sue, we will not deviate from New
Mexico’s time-honored approach which overall has served us well.
{22} To clarify, we do
not reject outright Plaintiffs’ prudential factors. As noted previously, each
of those factors is already incorporated in some fashion into our current
approach to standing, and are helpful points for guidance and analysis. We only
reject those factors as surrogates for injury in fact. Because we do not adopt
Plaintiffs’ proposed prudential factors for determining standing, and instead
elect to maintain the basic legal framework set out in our prior standing case
law, we now apply that framework to the current case.
Under Our Traditional Standing Jurisprudence, Plaintiffs
do not Have Standing to Bring Their Claim
{23} As we have said,
under a traditional standing analysis, this case turns on the first of the
three elements—injury in fact. Plaintiffs claim that “the instant Ordinance
places everyone who drives within the city limits of Albuquerque, including
[Simonson] and other members of ACLU-NM, in imminent harm because it punishes
based on
arrest, not upon a finding of guilt.” According to Plaintiffs,
the injury that would confer standing in this case consists of Simonson, or
another ACLU member, having to drive under the fear that he will be erroneously
arrested for DWI, which will trigger a chain reaction that results in
forfeiture of his vehicle. “Plaintiffs argue that, since it is not illegal to
drive a vehicle or to drink before driving a vehicle, so long as the driver’s
blood alcohol concentration is within statutory limits, the Ordinance
potentially subjects drivers who drink, but are not intoxicated under our laws,
to the threat of forfeiture of the vehicle that they are driving.”
ACLU II,
2007-NMCA-092, ¶ 9.
{24} We agree with the
Court of Appeals that this asserted injury is simply too speculative with
respect to Simonson or any individual driver who is an ACLU member to meet the
injury in fact standard. As noted by the Court of Appeals, Simonson’s vehicle
could only be forfeited in the manner alleged if the following contingencies
were to take place: “(1) he drinks an amount of alcohol that does not raise his
blood alcohol concentration above statutory limits, (2) he is stopped by police
and arrested for driving while intoxicated, (3) he has his vehicle seized, (4)
he requests a hearing as provided by Section 7-6-5 of the Ordinance, (5) the
hearing officer finds that police did have probable cause to seize the vehicle,
and (6) the City is successful in obtaining an order of forfeiture from the
district court.”
Id. Plaintiffs cannot even demonstrate that the
triggering event for application of the Ordinance—an arrest for driving while
intoxicated—is imminent or likely with respect to Simonson or any individual
ACLU member.
{25} While we acknowledge
that perhaps the other contingencies need not necessarily take place for a
driver to attain standing to challenge the Ordinance on constitutional grounds,
at the very least a plaintiff must be able to demonstrate a high probability of
arrest for his own actions. It may be true that demonstrating such a high
probability of arrest of an individual driver is impossible without clairvoyant
capacities, but we do not see how that fact would militate in favor of not
requiring an injury in fact. Rather, we think that the impossibility of
discerning any individual to whom this Ordinance might be applied prior to the
City actually enforcing the Ordinance is precisely why this Ordinance is not
suited to a pre-enforcement challenge.
{26} Analogizing this
case to
ACLU I, Plaintiffs argue that they did not need to wait until
the Ordinance was enforced and they were actually injured to challenge the
constitutionality of the Ordinance. In
ACLU I, a group of teenagers,
their parents, and a business owner, along with the ACLU, brought suit against
the City of Albuquerque challenging the constitutionality of the City’s
juvenile curfew ordinance along with the program implemented to enforce that
ordinance.
1999-NMSC-044, ¶¶ 1, 6. The City argued that the teenagers lacked
standing to challenge the ordinance and the enforcement scheme because none of
them had been arrested or charged during the program.
Id. ¶ 8. In
holding that the teens did not need to await arrest and prosecution before they
could seek relief, this Court quoted from the United States Supreme Court
opinion in
Babbitt v. United Farm Workers National Union, 442 U.S. 289,
298 (1979), which held as follows:
When contesting the
constitutionality of a criminal statute, it is not necessary that [the
plaintiff] first expose himself [or herself] to actual arrest or prosecution to
be entitled to challenge [the] statute that he [or she] claims deters the
exercise of his [or her] constitutional rights. When the plaintiff has alleged
an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder, he [or she] should not be required
to await and undergo a criminal prosecution as the sole means of seeking
relief.
ACLU I, 1999-NMSC-044, ¶ 9. In ACLU I, we
agreed with the plaintiffs that the ordinance “curtail[ed] their previously
legitimate late night activities.” Id. Further, we noted that “the
[enforcement] program demonstrate[d] the City’s intention to apprehend individuals
in violation of the [curfew ordinance],” thus showing a credible threat of
prosecution if plaintiffs engaged in those previously legitimate activities. Id.
{27} We do not find
ACLU
I persuasive in our analysis of standing in the instant case. Unlike the
curfew ordinance, it is difficult to see how the Ordinance in this case
proscribes a course of conduct “arguably affected with a constitutional
interest.” The Ordinance dictates a consequence resulting from a DWI arrest; it
does not make illegal any particular course of conduct that was previously
permitted. Thus, the Ordinance in this case is very difficult to analogize to
the curfew ordinance in
ACLU I in terms of establishing a
credible threat of prosecution, or a “real risk” of injury.
{28} The plaintiffs in
ACLU
I could demonstrate that they themselves were highly likely to be arrested
for violating the curfew if they stayed out past the time specified in the
ordinance, simply by virtue of the fact that they were of a certain age and
because the City had demonstrated its intent to apprehend individuals in
violation of the curfew. This credible threat of prosecution, and the
consequent chilling effect on constitutionally protected activities such as
freedom of assembly and the liberty to move about freely, was therefore
sufficient to establish an imminent injury or a real risk of injury to the
particular plaintiffs. In this way,
ACLU I is similar to cases allowing
pre- enforcement overbreadth challenges to statutes that affect First Amendment
rights due to the chilling effect on freedom of expression.
See, e.g.,
State
v. James M.,
111 N.M. 473, 478,
806 P.2d 1063, 1068 (Ct. App. 1990).
Further, the object of the curfew ordinance—teenagers—made it particularly
appropriate to allow suit before an actual encounter with the law took place.
{29} In the instant case,
Plaintiffs cannot show a high likelihood that Simonson or any individual ACLU
member will even be arrested for DWI, let alone wrongly arrested for DWI, and
therefore exposed to the ultimate threat of having their vehicle forfeited
under the Ordinance. As the Court of Appeals observed, “if a person engages in
the legal conduct of driving . . . there is no credible threat that the person
will be prosecuted for that conduct; there is merely the hypothetical
possibility that the person will be wrongly arrested for DWI.”
ACLU II,
2007-NMCA-092, ¶ 17. Such a “hypothetical possibility” of injury will not
suffice to establish the threat of direct injury required for standing.
{30} An organization’s
standing to sue is premised on the standing of its individual members. Thus,
“an association has standing to bring suit on behalf of its members when: (a)
its members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.”
Forest Guardians,
2001-NMCA- 028, ¶ 21 (quoted authority omitted). As we discussed in the
previous section, the ACLU cannot satisfy the first component of this test.
Because Plaintiffs have not established that any ACLU member faces an imminent
threat of having her vehicle forfeited pursuant to a wrongful DWI arrest, the
ACLU cannot assert standing in its organizational capacity.
{31} Plaintiffs appear to
make a separate argument for third-party standing by claiming that this case is
one where “very important interests are at stake and those parties directly
affected are unlikely or unable to assert those important interests.” As we
noted previously, a litigant may assert the rights of third parties if she can
show that: (1) the litigant herself has “suffered an injury in fact, thus
giving . . . her a sufficiently concrete interest in the outcome of the issue
in dispute;” (2) the litigant has “a close relation to the third party;” and
(3) there exists “some hindrance to the third party’s ability to protect his or
her own interests.”
N.M. Right to Choose/NARAL, 1999-NMSC- 005, ¶ 13
(quoted authority omitted). Plaintiffs focus on the third prong, asserting that
the stigma associated with an arrest for DWI discourages potential plaintiffs
from coming forward to allege that they intend to drink, even to a measured
degree, then drive the streets of Albuquerque in order to establish the kind of
threatened injury needed for standing. However, the test for third-party
standing still requires that the litigant demonstrate an injury in fact, even
if it be a different type of injury than that which the third party would
suffer from the challenged conduct.
See id. ¶ 14 (holding that providers
of abortion services to Medicaid-eligible women had “both a direct financial
interest in obtaining state funding to reimburse them for the cost of [those]
services, and a close relation to the Medicaid-eligible women whose rights they
[sought] to assert in court.” (citations omitted)). As we have discussed at
length, Plaintiffs have not been able to show such an injury in this case.
{32} Further, regardless
of the absence of an injury in fact, there is no indication that any person
against whom the City enforces the Ordinance will be hindered from challenging
the Ordinance.
Cf. id. (noting that “privacy concerns and time
constraints impose a significant hindrance on the ability of Medicaid-eligible
women to protect their own interest in obtaining medically necessary
abortions”). In fact, any person threatened with having a vehicle seized or
forfeited for a DWI arrest will likely be highly motivated to bring such a
challenge.
See, e.g.,
One (1) 1984 White Chevy Ut.,
2002-NMSC-014
(City instituted civil forfeiture under previous version of the Ordinance and
claimants moved to dismiss, arguing that the ordinance violated double
jeopardy). As an example, if it turns out that the City does, in fact, seize
and forfeit a vehicle based solely on probable cause for the arrest, regardless
of whether the owner is ever
convicted of DWI, then that vehicle owner
will have the concrete injury, the motive, and—given the ACLU’s willingness to
intervene—the opportunity to mount an effective challenge to the Ordinance.
Great Public Importance Doctrine
{33} It is clear that
this Court can “confer” standing and reach the merits of a case regardless of
whether a plaintiff meets the traditional standing requirements, based on a
conclusion that the questions raised involve matters of great public
importance.
See Kirkpatrick, 86 N.M. at 363, 524 P.2d at 979 (“[I]t has
been clearly and firmly established that even though a private party may not
have standing to invoke the power of this Court to resolve constitutional
questions and enforce constitutional compliance, this Court, in its discretion,
may grant standing to private parties to vindicate the public interest in cases
presenting issues of great public importance.”). Though such cases conferring
standing have generally arisen in the context of our original jurisdiction in
mandamus, we have exercised our discretion to resolve the constitutionality of
a statutory amendment on appellate review.
See Cobb v. State Canvassing Bd.,
2006-NMSC-034, ¶¶ 38- 39,
140 N.M. 77,
140 P.3d 498. Those cases deemed by this
Court to raise issues of great public importance typically have involved “clear
threats to the essential nature of state government guaranteed to New Mexico
citizens under their Constitution—a government in which the three distinct
departments, . . . legislative, executive, and judicial, remain within the
bounds of their constitutional powers.”
State ex rel. Coll v. Johnson,
1999-NMSC-036, ¶ 21,
128 N.M. 154,
990 P.2d 1277 (quoted authority omitted). We
have also granted standing in election cases implicating the guarantee of “free
and open” elections under
Article II, Section 8 of the New Mexico Constitution.
See, e.g.,
Gunaji v. Macias,
2001-NMSC-028,
130 N.M. 734,
31 P.3d
1008.
{34} Viewed in light of
our precedent, the instant case does not raise the kind of questions that this
Court has deemed to be of great public importance such that we would elect to
confer standing when it is not otherwise present. The question of whether the
Ordinance violates due process by allowing forfeiture of a vehicle based only
on an arrest does not implicate “the integrity of state government,” in terms
of separation of powers, or “the state’s definition of itself as a sovereign.”
Forest
Guardian,
2001-NMCA-028, ¶ 35 (quoted authority omitted). Rather, as noted
by the Court of Appeals, “[t]his case involves nothing more than a potential
violation of certain specific citizens’ due process rights, and therefore does
not rise to the level of a clear threat to the essential nature of government.”
Id. We would be hard pressed to distinguish in any principled way the
effects of this Ordinance from any other governmental activity that allegedly
threatens to take property in violation of due process of law, but without
already having done so. The issues raised by Plaintiffs, though certainly
serious and of constitutional magnitude, involve questions of due process that
are best addressed in the context of a specific case after enforcement of the
Ordinance.
See Baca,
2002-NMSC-017, ¶ 3 (quoting
Jolley v.
State Loan & Inv. Bd., 38 P.3d 1073, 1078 (Wyo. 2002), for proposition
that “[t]he doctrine of great public interest or importance should be applied
cautiously”);
State ex rel. Overton, 81 N.M. at 33, 462 P.2d at 618 (“As
desirable as it may be to have our opinion on questions of public importance as
soon as possible, it is always dangerous to function in the abstract. We must
avoid ill-defined controversies over constitutional issues.” (quoted authority
omitted)). Therefore, we decline to confer standing and reach the merits of
this case.
{35} For the foregoing
reasons, we affirm the decision of the Court of Appeals reversing the district
court and dissolving the permanent injunction.
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Chief Justice
PATRICIO M. SERNA, Justice
PETRA JIMENEZ MAES, Justice
MICHAEL E. VIGIL, Judge (sitting by designation)
Topic Index for ACLU v. City of Albuquerque, NO. 30,415