Petition for Writ of Certiorari — Chapman v. Luna

S| 5 ii 3 me 9 | ; Supreme Court, U.S.

FILES

SEP 9 1985

No. JOSEPH F. SPANIOL, JR.

CLERK

oc A raaeR ROR ——_

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

JOHN J. CHAPMAN, et al.,

Petitioners,

Ws

ROBERT EF. LUNA, PH.D., et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE NEW MEXICO SUPREME COURT

BRUCE E. PASTERNACK

BRUCE E. PASTERNACK, P.C.

Two Woodward Center

700 Lomas, N.E., Suite 100

Albuquerque, New Mexico 87102

(5C5) 842-1800

Attorney for Petitioners

RATE SORES CRE

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

Where a state interprets its equal protection clause

as substantively identical to the correlative federal

guarantee, may a state court avoid awarding attorney’s

fees in a civil rights case by labelling its decision that

equal protection was denied as resting solely on state

law?

LIST OF PARTIES BELOW

John J. Chapman

Troy H. Elliott

N. Altom

Robert E. Luna, Ph.D.

Ann Hyde

Erika Jones

Jonathan Samet, Ph.D.

Gary Lewis

eo FP SF PF PPP YS

James Montoya

—

=

Mike Creusere

—_—

pen

City of Albuquerque

—_

no

County of Bernalillo

_

no

Hamilton Test Systems, Inc., intervenor in the dis-

trict court, is not a party to this appeal. On May 21,

1984, pursuant to a stipulation among all parties,

the Motion for Attorney’s Fees was withdrawn with

respect to Hamilton Test Systems

(i)

TABLE OF CONTENTS

Page

bh eg tg 0) sy | a i

LIST OF PARTIES BELOW ............................. eieeniauan i

RN eT I os nscaaysnananaceneesnannawsescanaeuasbatnnsene iii

TABLE OF AUTHORITIES ..................... FOE, tek SPOOR A Vv

PRAYER ...... + ESSE CD ee CC Nee SN TET 1

Ss iishohantynuanaeaasenensutcdaineunean 1

sd ducchassninduiniedieiisiodvawddoune 1

STATUTORY PROVISIONS INVOLVED ..................... 2

FEDERAL CONSTITUTIONAL PROVISION IN-

as chia vansnibusaidsesirahnaamabinnnce 2

STATE CONSTITUTIONAL PROVISION _IN-

I ss adadepecdindacinsunaceucnns 2

STATEMENT OF THE CASE ...................... aR le AEN SL 3

REASONS FOR GRANTING THE WRIT ..................... 5

I. This Court should take steps to prevent the ju-

dicial sleight of hand whereby a plaintiff who

prevails on a civil rights claim pursuant to equal

protection guarantees is nevertheless deprived

of an award of attorney’s fees under § 1988 ........ 5

II. If attorney’s fees are not available for vindica-

tion of civil rights under state constitutions

whose protection are coextensive with the United

States Constitution, plaintiffs will be forced to

forgo state courts and bring all § 1983 cases in

federal court. This result will flood the federal

courts and defeat the congressional intent that

states provide a forum for the bringing of civil

rights suits based on the federal constitution ...... 9

ad sac eatatinseddasonndticaaiadaneceacan 10

iv

TABLE OF CONTENTS—Continued

Page

APPENDIX A (Opinion, New Mexico Supreme

IIIT oi sccic.aiecdanetlcesasedsedeusanephnetsenstnenanieieuiniaiaasheiasatn la

APPENDIX B (Chapman v. Luna, 101 N.M. 59, 678

Py IED asec ante nn ea ERISIREASaleebanpinine 6a

APPENDIX C (Civil Rights Attorney’s Fees Awards

Pee @€:., fe ih Fo |. | eee 20a

APPENDIX D (Complaint, Count Six) ........................... 2la

EE ei

Vv

TABLE OF AUTHORITIES

SUPREME COURT CASES Page

Delaware v. Prouse, 440 U.S. 648 (1978) —.............. 7,8

Martinez v. California, 444 U.S. 277 (1980) ........... 5,9

McLaughlin v. Florida, 379 U.S. 184 (1964) ...... ae 6

Michigan v. Long, 463 U.S. 1032 (1983) ......00.........

South Dakota v. Neville, 459 U.S. 553 (1983) ........

Spencer v. South Carolina, 53 U.S.L.W. 4431

I UN I ela 9

OTHER JURISDICTIONS

Anaconda Co. v. Property Tax Dept., 94 N.M. 202,

606 F.2d 614 (Ct. Aum. 1979) ................................. 6

Chapman v. Luna, 101 N.M. 59, 678 P.2d 687

RINNE co. vobsasltock abatdcaias calcines desc aanceauniaeae areas 4,7

Espanola Housing Authority v. Atencia, 90 N.M.

me 8S &. Fe. y . Re enon mene 6

Garcia v. Albuquerque Public Schools Board, 95

N.M. 391, 622 P.2d 699 (Ct. App. 1980) ............ 6

Gruschus v. Bureau of Revenue, 74 N.M. 775, 399

fb | RRP erreur oe 6

McGeehan v. Bunch, 88 N.M. 308, 540 P.2d 238

PIE tir hasta luke cooccubitabsstines ccaeallensa cate conandetadia Nake cat 6

People v. Brisendine, 119 Cal. Rptr. 315, 531 P.2d

I III edi ck acetate chiens ee encdaceisaiene he adaes 7

Sena School Bus Co. v. Board of Education, 101

N.M. 26, 677 P.2d 639 (Ct. App. 1984) .....00000000.... 6

CONSTITUTIONS

Amendment Fourteen, United States Constitution.. 2

Article 2, § 18, New Mexico Constitution _.............. 2

STATUTES

Title 28, United States Code, § 1257 ....0000000... ye 1

Title 42, United States Code, § 1983 2.00.0... 2,5,9

Title 42, United States Code, § 1988 0... 2,4, 5,9

MISCELLANEOUS

1984 Annual Report of the Director of the Admin-

istrative Office of the United States Courts ......... 10

122 Cong. Rec. 35128 (1976) -................ ieadasaaeaehiia 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No.

JOHN J. CHAPMAN, et al.,

Petitioners,

v.

ROBERT E. LUNA, PH.D., e¢ al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE NEW MEXICO SUPREME COURT

PRAYER

The Petitioners, John J. Chapman, Troy H. Elliott,

and N. Altom, respectfully pray that a writ of certiorari

issue to review the Judgment and Opinion of the New

Mexico Supreme Court entered in this proceeding on June

11, 1985.

OPINION BELOW

The Opinion of the New Mexico Supreme Court, not

yet reported, appears as Appendix A, attached.

JURISDICTION

The Opinion of the New Mexico Supreme Court was

filed on June 11, 1985. This Court’s jurisdiction is in-

voked under 28 U.S.C. § 1257/3).

2

STATUTORY PROVISIONS INVOLVED

Civil Rights Act of 1871: 42 U.S.C. § 1983:

Every person, who, under color of any statute, ordi-

nance, regulation, custom or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction there-

of to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress. For the purposes of this section any Act

of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the

District of Columbia.

Civil Rights Attorney’s Fees Awards Act of 1976: 42

U.S.C. § 1988: Appendix C.

FEDERAL CONSTITUTIONAL PROVISION INVOLVED

Fourteenth Amendment to the United States Constitu-

tion, § 1:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out the due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

STATE CONSTITUTIONAL PROVISION INVOLVED

New Mexico Constitution, Article 2, § 18:

No person shall be deprived of life, liberty or prop-

erty without due process of law; nor shall any per-

son be denied equal protection of the laws.

3

STATEMENT OF THE CASE

In 1979, a motor vehicle emission inspection program

(hereafter “Program”) was created by joint ordinances

of the City of Albuquerque and Bernalillo County. The

final set of regulations was filed with the appropriate

state agency on December 16, 1982, and the Program was

scheduled to go into effect on January 3, 1983. The Peti-

tioners filed an action in state court seeking to halt the

operation and enforcement of the Program cn the ground,

inter alia, that the Program violated the Petitioners’

right to equal protection under the law. Complaint, Count

Six, Appendix D. The pleadings did not specify whether

the deprivation was pleaded as a matter of state or fed-

eral law because the state and federal equal protection

clauses had consistently been interpreted as substantively

identical provisions by the state courts.

The district court ordered that the style of the action

be recast, and the contractor responsible for implementa-

tion of the Program was allowed to intervene. Trial to

the court was held on January 24 and 25, 1983.

Evidence was presented to the court on the issues of

the Program’s conflict with state statutes and its failure

to afford equal protection to all similarly situated per-

sons. Memoranda of law were subsequently submitted by

the parties on all issues raised in the Complaint and dur-

ing trial. Petitioners’ memorandum argued, inter alia, that

the City/County ordinances and regulations were not ra-

tionally related to the Program’s goals; i.e., the effectua-

tion of improved ambient air quality. Petitioners cited

decisions of both the New Mexico Supreme Court and this

Court in support for their claim of a deprivation of their

right to equal protection.

The district court dismissed the Complaint and upheld

the constitutionality and validity of the Program. On ap-

peal, the New Mexico Supreme Court affirmed in part and

4

reversed in part. Chapman v. Luna, 101 N.M. 59, 678

P.2d 687 (1984) (Chapman v. Luna I), attached as Ap-

pendix B. That court held that the Program’s Inspection

Fee was impermissible under state law and that the $75

repair provision, which established a maximum required

low emission-related repair cost of $75, was not rationally

related to any legitimate state end because it allowed the

worst pollutors to continue to operate their vehicles.

Finding that the provision did not have any reasonable

basis since it exempted “certified” pollutors from a pollu-

tion control program, the court struck the repair maxi-

mum as violative of constitutional guarantees of equal

protection. The court did not specify whether it was re-

ferring to the federal or state equal protection provisions,

although the standard it applied was the federal “rational

relation” test. The Opinion of the New Mexico Supreme

Court was filed on March 13, 1984.

On April 4, 1984, Petitioners filed a Motion for Attor-

ney’s Fees based on 42 U.S.C. § 1988. The district court

accepted briefs but did not hear oral argument or hold

an evidentiary hearing. On July 2, 1984, the district

court filed its Order denying the Motion for Attorney’s

Fees. On July 20, 1984, Petitioners appealed from this

denial. The New Mexico Supreme Court filed its Opinion

affirming the denial on June 11, 1985. Chapman v. Luna

II. That court found that the equal protection issue had

been decided as a matter of state law only, precluding

application of § 1988.

1 Because the New Mexico Supreme Court ruled only on the

threshold issue of whether Petitioners were deprived of a federal

constitutional right, that court did not reach the additional federal

questions raised in this case. On remand, the New Mexico court

must determine whether Petitioners were prevailing parties for

§ 1988 purposes and whether it will exercise its discretion to award

attorney’s fees under that section.

5

REASONS FOR GRANTING THE WRIT

I. This Court should take steps to prevent the judicial

sleight of hand whereby a plaintiff who prevails on a

civil rights claim pursuant to equal protection guar-

antees is nevertheless deprived of an award of attor-

ney’s fees under § 1988.

An important consequence of the federalism principle

which unites this country is that the federal courts are

not the only repository of federal rights. This Court has

specifically recognized that § 1983 claims are appropri-

ately adjudicated in state court. Martinez v. California,

444 U.S. 277, 283-84 n.7 (1980). It is essential to the

policy of federalism that this Court has consistently ex-

pressed that state courts remain responsive to plaintiffs

asserting federal rights. The New Mexico Supreme Court

has found a novel method of circumventing the concurrent

jurisdiction policy essential to the efficient operation of

§ 1983. To allow the New Mexico Supreme Court to sub-

vert civil rights claims by denominating them as based

only on state law would set a pattern that could be fol-

lowed by every state which interprets its constitution as

providing protection that is coextensive with the guaran-

tees of the Fourteenth Amendment.

In the present case, the New Mexico Supreme Court

was selective about its enforcement of federal rights. It

refused to allow the Petitioners to be deprived of their

civil rights through an ordinance that violated equal pro-

tection gauged according to the federal standard, but it

then refused to accord Petitioners their Congressionally

mandated rights under § 1988. The mechanism which the

court employed to defeat the § 1988 claim was the subter-

fuge of labelling its decision as resting on state grounds

only. That label is deceptive because the state equal pro-

tection clause provides the same protection as the federal

equal protection clause.

For all substantive purposes, the New Mexico equal

protection clause has always been interpreted as identical

6

to the federal equal protection clause. For example, in

the face of a challenge based explicitly on both the state

constitution and the Fourteenth Amendment, the New

Mexico Supreme Court, in Espanola Housing Authority

v. Atencia, 90 N.M. 787, 568 P.2d 1233 (1977), upheld a

state statute as not violative of equal protection. The

court applied the same analysis to both the state and the

federal equal protection clauses. In McGeehan v. Bunch,

88 N.M. 308, 540 P.2d 238 (1975), the New Mexico

Supreme Court applied the test annunciated by this Court

in McLaughlin v. Florida, 379 U.S. 184 (1964), to in-

validate the New Mexico guest statute as not reasonable

in light of its purpose. In Gruschus v. Bureau of Reve-

nue, 74 N.M. 775, 399 P.2d 105 (1965), the New Mexico

Supreme Court upheld a taxing provision as violative of

neither the state nor the federal equal protection clause

where the tax was “equal and uniform on all subjects of

a class and the classifications for taxation [were] reason-

able.” 74 N.M. at 777, 399 P.2d at 106.

In Sena School Bus Co. v. Board of Education, 101

N.M. 26, 677 P.2d 639 (Ct. App. 1984), the New Mexico

Court of Appeals held that “‘[t]he tests to determine the

validity of a statute challenged under the United States

and New Mexico equal protection clauses are the same.”

101 N.M. at 29, 677 P.2d at 642 (emphasis added). In

_ Anaconda Co. v. Property Tax Dept., 94 N.M. 202, 608

P.2d 514 (Ct. App. 1979), cert. denied, 94 N.M. 628,

614 P.2d 545 (1980), the same court stated that “[t]he

equal protection clauses of the United States and New

Mexico Constitutions have been interpreted similarly,” 94

N.M. at 210, 608 P.2d at 522, and cited federal as

well as state cases in setting forth the basic con-

struction principles. In Garcia v. Albuquerque Public

Schools Board, 95 N.M. 391, 622 P.2d 699 (Ct. App.

1980), the court held that “[t]he standards for viola-

tion of the equal protection clauses of the United States

and New Mexico Constitutions are the same.” 95 N.M.

at 393, 622 P.2d at 701 (emphasis added). Therefore,

T

when the New Mexico Supreme Court found that the

Program violated an equal protection standard in New

Mexico, by definition it violated both the state and fed-

eral equal protection standard.

Only in Chapman v. Luna II, where attorney’s fees

are at issue, does it appear that a distinction can be made

between state and federal equal protection. But even in

Chapman v. Luna II, where the Court explicitly stated

that the equal protection clauses of the United States

Constitution and the New Mexico Constitution “consti-

tute independent rights and protections,” Op. at 2, the

distinction relates only to the source of the rights and

not to any substantive difference between the federal

and state protections. Indeed, Chapman v. Luna II af-

firmed the decision in Chapman v. Luna I, which had

applied the federal rational relation test to strike the

ordinance on constitutional grounds.”

Whether there is an adequate and independent state

ground is a federal question. Delaware v. Prouse, 440

U.S. 648 (1978). There, this Court held that its juris-

diction is properly invoked when a state court explicitly

bases its decision on parallel state and federal constitu-

tional provisions such that a violation of the federal con-

stitution is necessarily a violation of the state constitu-

tion. Because the Delaware Supreme Court’s interpreta-

tion of its own constitution concededly depended upon its

interpretation of the Fourth and Fourteenth Amend-

2 The issue presented in this Petition does not arise where a state

court has interpreted its own constitution as providing greater

protection than the federal constitution and therefore accords re-

lief not available under the federal guarantees. For example, in

People v. Brisendine, 119 Cal. Rptr. 315, 5381 P.2d 1099 (1975), the

California Supreme Court held that the California Constitution pro-

vided greater protection against unreasonable searches and seizures

than that required by the United States Constitution. The court

therefore held invalid a search which met the minimum Fourth

Amendment requirements as set forth by this Court. Petitioner

does not challenge the nonreviewability of Brisendine.

8

ments, this Court granted certiorari and decided the

ease on the merits. See also South Dakota v. Neville,

459 U.S. 553 (1983) (state court decision did not rest

on an independent state ground where state court “sim-

ply assumed that any violation of the Fifth Amendment

privilege also violated, without further analysis, the state

privilege.” 459 U.S. at 556-57, n.5).

In Prouse and Neville, the state courts reasoned that

because there was a violation of the federal constitution,

there was also an automatic violation of the state con-

stitution. This Court held that under these circum-

stances, the state ground was not independent of the

federal ground. In the present case, however, the state

court found a violation of the state constitution and pro-

fessed not to address the federal constitutional question,

even though it had previously construed the federal and

state provisions as substantively identical. Under these

circumstances, this Court should also find that the state

ground is not independent of the federal constitution.

This case presents the issue left undecided by this

Court’s recent opinion in Michigan v. Long, 463 U.S.

1032 (1983). There, the Court held that in the absence

of a plain statement from a state court asserting the

independence of the state law ground, the Court would

assume that the state law ground is not independent of

federal law.

Long, however, did not decide whether the plain state-

ment test is satisfied merely by a state court’s conclu-

sory assertion of independence of the state law ground.

This Court has never determined when a state ground

is independent in the context of a civil rights action.

This issue is especially important in civil rights cases

because the “adequate and independent state law” rule

means that a plaintiff who prevails on state grounds only

will not be eligible to receive the award of attorney’s fees

that would be proper if a violation of the federal con-

stitution were found.

9

Section 1988 was enacted to assure that potential plain-

tiffs would not “be deterred from bringing deserving

eases to remedy violations of the Constitution,” 122 Cong.

Rec. 35128 (1976). It is therefore important that this

Court instruct those states whose courts have interpreted

their constitutions as providing guarantees equivalent to

the federal equal protection and due process guarantees

that reliance on state grounds which previously have

been held to be the substantive equivalent of federal

grounds does not constitute an independent state basis

and therefore does not preclude an award of attorney’s

fees under § 1988.* To allow the New Mexico Supreme

Court decision to stand would be to encourage a perni-

cious erosion of the rights secured by the Civil Rights

Act.

II. If attorney’s fees are not available for vindication of

civil rights under state constitutions whose protection

are coextensive with the United States Constitution,

plaintiffs will be forced to forgo state courts and bring

all § 1983 cases in federal court. This result will flood

the federal courts and defeat the congressional intent

that states provide a forum for the bringing of civil

rights suits based on the federal constitution.

If a parallel violation of state and federal constitu-

tions does not allow attorney’s fees to be awarded to the

prevailing plaintiffs, attorneys will file civil rights ac-

tions only in federal courts for fear of penurious state

courts. This flooding of the federal courts would defeat

the congressional intent to allow concurrent jurisdiction

and would create an intolerable burden on the federal

judicial system.

3 A finding that the State ground is independent would raise the

issue of whether the State court must reach the § 1983 claim. That

issue was not addressed in Martinez v. California, supra. Although

raised just last term, the issue was not decided because the judg-

ment below was affirmed by an equally divided Court. Spencer v.

South Carolina, 53 U.S.L.W. 4431 (March 26, 1985).

10

In recent years, the number of civil rights cases

brought in federal courts has increased dramatically. In

1984 alone, 21,219 civil rights cases were filed in United

States district courts, an increase of 7.5 percent over the

19,735 cases filed in 1983. Moreover, as of June 30,

1984, there were 1,137 civil rights cases pending for

three or more years in the federal district courts. 1984

Annual Report of the Director of the Administrative

Office of the United States Courts, 145, 158. Precluding

state courts from employing the “independent state

grounds” subterfuge as a means of refusing attorney’s

fees would encourage the use of state courts for the

bringing of civil rights actions and would alleviate the

burden on the federal system.

CONCLUSION

For the reasons given above, Petitioners respectfully

pray that this Honorable Court grant this Application

for Writ of Certiorari and that they be given the op-

portunity to further brief and argue the issues related

herein.

Respectfully submitted,

BRUCE E. PASTERNACK

BRUCE E. PASTERNACK, P.C.

Two Woodward Center

700 Lomas, N.E., Suite 100

Albuquerque, New Mexico 87102

(505) 842-1800

Attorney for Petitioners

APPENDICES

la

APPENDIX A

IN THE SUPREME COURT

OF THE STATE OF NEW MEXICO

No. 15,553

JOHN J. CHAPMAN, et al.,

Plaintiffs-A ppellants,

and Cross-A ppellees,

VS.

ROBERT E. LUNA, PH.D.., et al.,

Defendants-A ppellees,

and Cross-A ppellants,

and

HAMILTON TEST SYSTEMS, INC.,

Intervenor-A ppellee.

[Filed June 11, 1985)

Appeal from the District Court of Bernalillo County

Philip R. Ashby, District Judge

Bruce E. Pasternack

Albuquerque, NM For Appellants

Gary O’Dowd

Albuquerque, NM For Appellee City of Albuquerque

Hunter Geer

Joe Diaz

Albuquerque, NM For Appellee County of Bernalillo

Sutin, Thayer & Browne

Charles Brideau

Philip Higdon

Santa Fe, NM For Hamilton Test Systems

2a

OPINION

FEDERICI, Chief Justice.

»laintiffs-Appellants (plaintiffs) filed suit in the Ber-

nalillo County District Court seeking a declaratory judg-

ment that the operation and enforcement of the joint

Albuquerque/Bernalillo County Motor Vehicle Emission

Inspection Program (Program) was unlawful. The dis-

trict court dismissed the complaint and upheld the Pro-

gram. Plaintiffs appealed the dismissal to this Court

which, in Chapman v. Luna, 101 N.M. 59, 678 P.2d 687

(1984) (Chapman v. Luna I), affirmed in part and re-

versed in part. The mandate issued on March 28, 1984,

remanding the cause to the district court. On April 4,

1984, plaintiffs filed in the district court a motion for

attorney fees, pursuant to 42 U.S.C. Sections 1983 and

1988 (1982). Plaintiffs now appeal from the district

court’s denial of the motion. We affirm the district court.

In Chapman v. Luna I, plaintiffs were successful in

having two aspects of the Program invalidated by this

Court. The inspection fee was invalidated on state statu-

tory grounds and the $75.00 repair provision was held

to violate “equal protection standards.” Plaintiffs now

argue that the equal protection allegation was a 42 U.S.C.

Section 1983 cause of action and that because they pre-

vailed on this issue, they are entitled to Section 1988

attorney fees. Count six of plaintiffs’ complaint con-

tained the equal protection claim. It did not specifically

refer to the New Mexico Constitution, the United States

Constitution, Section 1983, or Section 1988.

Section 1988 provides in part: “[iJn any action or

proceeding to enforce a provision of sections 1981, 1982,

1983 ... the court, in its discretion, may allow the pre-

vailing party .. . a reasonable attorney’s fee as part of

the costs.” Plaintiffs’ entitlement to Section 1988 attor-

3a

ney fees depends upon whether their original suit was an

action under Section 1983.

The statutory prerequisites for a Section 1983 cause

of action are “that the defendants must have acted under

color of law, regulation, custom or usage of the State

of New Mexico, and that the plaintiff must have been

deprived of federal constitutional rights, privileges and

immunities.” Gomez v. Board of Education, 85 N.M. 708,

711, 516 P.2d 679, 682 (1973); Stringer v. Dilger, 313

F.2d 536 (10th Cir.1963). Plaintiffs’ contention that

their original lawsuit was a Section 1983 cause of action

fails due to their inability to show that deprivation of a

federal constitutional right was raised and decided in

their favor in Chapman v. Luna I.

In Chapman v. Luna I, this Court did not specifically

refer to either the New Mexico Constitution or the

United States Constitution in holding that the $75.00

repair provision violated ‘equal protection standards.”

We referred solely to New Mexico case law. Although

the equal protection clauses of the United States Con-

stitution and the New Mexico Constitution have been

interpreted similarly, Anaconda Co. v. Property Tax De-

partment, 94 N.M. 202, 608 P.2d 514 (Ct.App.1979),

cert. denied, 94 N.M. 628, 614 P.2d 545 (1980), they

nevertheless constitute independent rights and protections.

In an analogous case, the California Supreme Court

invalidated a state statute as violating “the basic con-

stitutional guaranty of equal protection of the law... .”

Department of Mental Hygiene v. Kirchner, 60 Cal.2d

716, 717, 36 Cal.Rptr. 488, 388 P.2d 720 (1964). The

United States Supreme Court granted certiorari, but

then vacated and remanded the case to the California

Supreme Court to clarify “whether that court relied on

the State Constitution alone, the Federal Constitution

alone, or both.” Department of Mental Hygiene v.

4a

Kirchner, 380 U.S. 194, 198 (1965). On remand the

California Supreme Court held that the statute had been

invalidated on state constitutional grounds and not by

compulsion of the Federal Constitution. Department of

Mental Hygiene v. Kirchner, 62 Cal.2d 586, 43 Cal.Rptr.

329, 400 P.2d 321 (1965). The Supreme Court of Cali-

fornia determined that the state and federal equal pro-

tection clauses “provide generally equivalent but inde-

pendent protections in their respective jurisdictions.” 62

Cal.2Zd at 588, 43 Cal.Rptr. at 330, 400 P.2d at 322.

Similarly, we determine that the $75.00 repair pro-

vision was invalidated in Chapman v. Luna I solely on

New Mexico constitutional grounds. Appellants did not

specifically plead a federal equal protection claim or a

claim under 42 U.S.C. Section 1983, and this Court did

not decide that issue under compulsion of the Federal

Constitution.

Chapman v. Luna I, therefore, did not present or decide

a federal question. Appellants did not prevail in proving

a deprivation of a federal constitutional right, privilege,

or immunity. Their cause of action was not a Section

1983 action. The case was brought under the New Mexico

Declaratory Judgment Act, NMSA 1978, Sections 44-6-1

to -15, and was decided solely on state statutory and

state constitutional grounds. Having failed to prevail in

an action to enforce Section 1983, plaintiffs are not en-

titled to any attorney fees under Section 1988.

On cross-appeal, defendants contend that the district

court erred in awarding plaintiffs their appellate costs.

We find this question to be moot. The contested costs

were paid by Hamilton Test Systems, Inc., who is not a

party to this appeal. Furthermore, plaintiffs assert no

claim against the City and County for the costs.

The judgment of the district court is affirmed. The

cause is remanded for entry of judgment on mandate in

conformity with this opinion.

5a

IT IS SO ORDERED.

/s/ William R. Federici

WILLIAM R. FEDERICI

Chief Justice

WE CONCUR:

/s/ Dan Sosa, Jr.

DAN SosA, JR.

Senior Justice

/s/ Harry E. Stowers, Jr.

HARRY E. STOWERS, JR.

Justice

6a

APPENDIX B

SUPREME COURT OF NEW MEXICO

No. 14867

JOHN J. CHAPMAN, TROY H. ELLIOTT and N. ALTOM,

Petitioners-A ppellants,

V.

RoBERT E. LuNA, Ph.D., ANN HYDE, ERIKA JONES,

JONATHAN SAMET, Ph.D., GARY LEWIS, JAMES MON-

TOYA and MIKE CREUSERE, as members of the ALB/

BERN COUNTY AIR QUALITY CONTROL BOARD, CITY OF

ALBUQUERQUE and the BOARD OF COUNTY COMMISSION-

ERS OF BERNALILLO,

Respondents-A ppellees.

March 18, 1984

Bruce E. Pasternack, Michael J. Condon, Albuquerque,

for petitioners-appellants.

Gary O’Dowd, City Atty., Barbara W. Stephenson,

Asst. City Atty., Albuquerque, Brown, Bain & Binga-

man, Philip R. Higdon, Santa Fe, Hunter L. Geer, Joe

Diaz, Albuquerque, for respondents-appellees.

OPINION

RIORDAN, Justice.

John J. Chapman, Troy H. Elliott, and N. Altom (Pe-

titioners) filed suit in district court seeking a declara-

tory judgment that the operation and enforcement of the

joint Albuquerque-Bernalillo County Motor Vehicle Emis-

Ta

sions Inspection Program (Program) is unlawful. After

a non-jury trial, the district court dismissed Petitioners’

complaint and entered an order upholding the Program.

Petitioners appeal. We affirm in part and reverse in part.

The issues we address! are:

I. Whether state law prohibits the City from imposing

an inspection fee for the Program.

II. Whether the Program violates equal protection

standards by allowing exemptions not based on reason-

able distinctions.

III. Whether the Program’s criminal penalty provi-

sions are invalid.

IV. Whether the ordinances’ severability clauses should

be given effect.

In 1979, the Albuquerque City Council (Council) and

the Bernalillo County Commission (Commission) enacted

ordinances which established prohibitions against exces-

sive air pollutant emissions from motor vehicles in the

city of Albuquerque and in Bernalillo County. The or-

dinances delegated the power to regulate the operation

of a vehicle emissions inspection and maintenance pro-

gram to the Albuquerque-Bernalillo County Air Quality

Control Board (Board).

The Board, pursuant to its authority, adopted regula-

tions for the establishment and operation of the Pro-

gram. The Program requires that all private motor ve-

hicles manufactured in 1968 and thereafter undergo an

emissions inspection. Any vehicle failing the initial in-

spection may obtain a waiver from compliance with Board

emission standards if the vehicle receives a prescribed

1The issues we address on appeal are limited and specific. A

number of other issues discussed at oral argument, but not raised

in the briefs, might effect the validity of the Program. Therefore,

this opinion is not to be construed as an approval of the Program.

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low-emissions tune-up, or up to $75.00 worth of repairs

in attempting to bring the vehicle into compliance ($75.00

Repair Provision). Upon payment of an inspection fee

(Inspection Fee), the vehicle owner is given an inspec-

tion certificate (Certificate) to be displayed on the ve-

hicle. Violation of any provision of the Program is a

misdemeanor punishable by a fine of not more than

$300.00 and/or not more than 90 days imprisonment for

operating a registered vehicle without a Certificate.

The Program was to go into effect on December 31,

1982. Petitioners filed a petition for writ of mandamus

seeking to halt operation and enforcement of the Pro-

gram on statutory and constitutional grounds. The dis-

trict court granted a motion for leave to intervene by

Hamilton Test Systems, Inc. (Hamilton) on the basis

of Hamilton’s status as a party to the contract with the

City of Albuquerque (City) for design and operation of

the Program’s test stations. On January 7, 1983, the

district court ordered operation and enforcement of the

Program ceased until January 17, 1983. The district

court subsequently designated the action as a suit for

declaratory judgment.

I. Inspection Fee.

Petitioners argue that the imposition of the Inspec-

tion Fee constitutes the charging of fees for vehicles sub-

ject to registration under the Motor Vehicle Code, NMSA

1978, Sections 66-1-1 to 8-140 (Orig.Pamp. and Cum.

Supp.1983), and that Section 66-6-25 prohibits imposi-

tion of the Inspection Fee. Section 66-6-25 provides:

No county or municipality shall require registra-

tion or charge fees for any vehicle subject to regis-

tration under the Motor Vehicle Code * * *. (em-

phasis added).

The Council, Commission, and Hamilton argue that

the Inspection Fee is not a “fee” within the meaning of

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Section 66-6-25. They claim that the purpose of Section

66-6-25 is to prohibit cities and counties from using ve-

hicles as a means of raising general revenues and that

the Inspection Fee is only for defraying the administra-

tive costs of an environmental program that was spe-

cifically delegated to local authorities by the State. They

also argue that the Inspection Fee is a valid exercise of

local authorities’ home rule power. We disagree.

This Court has the duty of construing statutes, if pos-

| sible, to resolve any apparent conflict. Runyan v. Jara-

millo, 90 N.M. 629, 567 P.2d 478 (1977). However,

where a statute makes sense as written, we will not read

language into it which is not there. Burroughs v. Board

of County Commissioners, 88 N.M. 303, 540 P.2d 233

(1975). Section 66-6-25 states that no city or county

shall charge fees for motor vehicles. It does not limit

cities and counties to the imposition of only certain fees

as the Council, Commission and Hamilton argue. In-

stead, Section 66-6-25 makes clear the legislative intent

that cities and counties are prohibited from charging

7 any fees for motor vehicles, regardless of the purpose

| of the fees.

We therefore determine that the imposition of the In-

spection Fee is prohibited under Section 66-6-25.

N.M. Const. Art. X, Section 6, the municipal home rule

amendment, provides in pertinent part:

D. A municipality which adopts a charter may

exercise all legislative powers and perform all func-

tions not expressly denied by general law or charter.

(emphasis added).

The major case discussing “municipal home rule” in New

Mexico is Apodaca v. Wilson, 86 N.M. 516, 525 P.2d 876

(1974). The issue in Apodaca was whether the City of

Albuquerque could increase water and sewer rates and

apply the increased revenue to municipal functions other

than those set out by statute. The statutes at that time

niet

I ne enn Sate SAAS BD insta sab a 6

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specifically allowed the City to use water and sewer reve-

nues for “maintaining, enlarging, extending, construct-

ing and repairing’” water and sewer systems. Id. at

519, 525 P.2d at °°0 (quoting NMSA 1953, Repl.Vol. 3,

(1968)), § 14-26-4 and § 14-25-2(A). The statutes did

ot authorize the revenue to be used for any other pur-

se nor did it forbid its use for other municipal func-

uons. In ruling in favor of the City, this Court stated:

The [Municipal Home Rule Amendment] and art. I

of the City Charter enable the City, as a municipal

corporation, to exercise all legislative powers and to

perform all functions not expressly denied by the

City Charter or general state law.

Apodaca, 86 N.M. at 520, 525 P.2d at 880 (emphasis

added). This Court defined “general law” as “a law

that applies generally throughout the state, or is of state-

wide concern * * *.” Apodaca, 86 N.M. at 521, 525 P.2d

at 881. This Court also determined that “‘not expressly

denied” means that “some express statement of the au-

thority or power denied must be contained in such gen-

eral law in order to be applicable * * * or otherwise no

limitation exists.” Apodaca, 86 N.M. at 521-522, 525

P.2d at 881-882.

The law at issue here, Section 66-6-25, applies gen-

erally throughout the state and is of statewide concern

because the people of the state have an interest in main-

taining a uniform system of conditions and charges for

operating motor vehicles in the state. Section 66-6-25 is

therefore a “general law”, and it clearly and expressly

states that cities and municipalities are prohibited from

charging fees for motor vehicles subject to registration.

Therefore, we also determine that the imposition of the

Inspection Fee is not a valid exercise of local authorities’

home rule power.

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II. Equal Protection.

Petitioners argue that the Program violates equal pro-

tection standards because: (1) it exempts from coverage

vehicles manufactured before 1968 and all vehicles less

than one year old; and (2) the $75.00 Repair Provision

is discriminatory in its application.

We have previously determined that:

Equal protection does not prohibit classification for

legislative purposes, provided that there is a rational

and natural basis therefor, that it is based on a sub-

stantial difference between those to whom it does

and those to whom it does not apply, and that it is

so framed as to embrace equally all who may be in

like circumstances and situations.

Gruschus v. Bureau of Revenue, 74 N.M. 775, 778, 399

P.2d 105, 107 (1965) (citations omitted). Furthermore,

a presumption exists that legislative acts of a munici-

pality are legal and valid, and their provisions are pre-

sumed constitutional. City of Albuquerque v. Jones, 87

N.M. 486, 535 P.2d 1337 (1975). Since the Program is

“legislative in nature’, the presumption extends to it.

Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo

County Air Quality Control Bd., 80 N.M. 633, 637-638,

459 P.2d 159, 163-164 (Ct.App.1969).

Petitioners first argue that there is no significant dif-

ference between 1967 model vehicles and 1968 model ve-

hicles which justifies exempting 1967 model vehicles from

the Program. They claim that the fact that pre-1968

motor vehicles were not required by the EPA to have

anti-pollution devices installed does not provide a ra-

tional basis for the exemption. We disagree.

The record indicates that the pre-1968 model vehicle

exemption was decided upon for several reasons. First,

the Environmental Protection Agency (EPA) did not re-

quire pre-1968 model vehicles to have pollution control

devices. Second, EPA recommends that pre-1968 model

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vehicles and vehicles more than 15 years old be ex-

empted from emissions inspection maintenance programs

that grant age exemptions. The record indicates that

such exemptions are granted in Connecticut, Missouri,

and Colorado, while other programs exempt an even

larger group of vehicles. Third, mechanical differences

render pre-1968 vehicles more difficult to test for emis-

sion levels than vehicles manufactured in 1968 and there-

after. In addition, the State of New Mexico, pursuant to

Section 66-3-844(C), requires that all vehicles manufac-

tured in 1968 and thereafter be “maintained in good

working order with the factory-installed devices and

equipment * * * designed to prevent, reduce or control

exhaust emissions or air pollution.” Testimony at trial

indicated that pre-1968 model vehicles cannot be meas-

ured by state-of-the-art testing equipment and that it is

difficult to obtain parts in repairing and tuning-up pre-

1968 model vehicles. Testimony at trial also indicated

that it would be impossible to bring pre-1968 model ve-

hicles within applicable emission standards without un-

fairly applying these standards.

After reviewing the record, we determine that the pre-

1968 model vehicle exemption does not violate equal pro-

tection standards because there are significant differences

between 1967 and 1968 model vehicles which provide a

rational basis for exempting pre-1968 model vehicles.

Petitioners also argue that the $75.00 Repair Pro-

vision is discriminatory in its application. The Program

establishes a maximum required low emission-related re-

pair cost of $75.00 for vehicles to qualify for a certifi-

cate of waiver. However, the $75.00 Repair Provision

does not apply to the cost of replacing or repairing anti-

pollution equipment that has been removed or rendered

inoperable by any person. Petitioners claim that by re-

quiring the latter group of vehicles to come into compli-

ance, regardless of cost, this exemption denies equal pro-

tection to those persons whose anti-pollution devices have

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been removed or rendered inoperable through no fault of

their own.

It is rational and proper to single out persons who

have intentionally removed or rendered inoperable anti-

pollution devices. However, the Program allows vehicles

whose anti-pollution devices that do not function properly

or have been rendered inoperable or removed by another

means to undergo no more than $75.00 worth of repairs

even if those repairs do not bring the vehicle into com-

plianee. The Federal Government has required all vehicles

manufactured in a current year to meet certain emission

standards. 42 U.S.C. § 7521(a) (Supp.V.1981). It is a

violation of Federal law to remove or render inoperable

the manufacturer’s anti-pollution devices. 42 U.S.C.

§ 7522(a) (3) (A) (Supp.V.1981). In our opinion, it is

not unfair or unreasonable to single out this group of

violators and require them to spend whatever it takes to

bring their vehicles into compliance. Nor is it unreason-

able to exempt new cars from testing since Federal law

requires that they meet the federal standards when manu-

factured. 42 U.S.C. § 7521(a) (Supp.V.1981).

This does not, however, address the real issue involving

the $75.00 exemption. The Program, through testing,

identifies vehicles that pollute. However, by paying up to

$75.00 to a private individual, a mechanic, it allows the

violators who are in effect “certified” as the worst

pollutors to continue to operate their vehicles. This is not

rational. It does not have any reasonable basis, nor is it

designed to further the objectives of cleaning up the air.

Allowing cars that fail the test to undergo no more than

$75.00 worth of repairs, violates the Program’s stated

purpose which is to protect the health and welfare of the

citizenry by reducing pollutant levels. If the Program is

to operate fairly and pursue its stated purpose, then it is

essential that all vehicles tested and proved to be operat-

ing below the Program’s emission standards be required

to undergo sufficient repairs to bring them into compliance

regardless of the expense involved.

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We therefore determine that the $75.00 Repair Pro-

vision is invalid.

Ill. Criminal Penalties.

Petitioners also argue that the Program is invalid be-

cause it imposes a criminal penalty in violation of state

law. Article X, Section 6 provides in pertinent part:

E. The purpose of this section is to provide for

maximum local self-government. A liberal construc-

tion shall be given to the powers of municipalities.

(emphasis added).

In reviewing city legislation, we consider that:

[A] home rule municipality no longer has to look to

the legislature 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.

To adopt any other interpretation in New Mexico

would make the home rule amendment meaningless.

Apodaca, 86 N.M. at 521, 525 P.2d at 881 (emphasis

added).

In determining the authority of the Council to enact

its ordinance, including its penalties, we must look at the

applicable legislative enactment, the state Air Quality

Control Act, NMSA 1978, Section 74-2-1 to Section 74-2-

17 (Repl.Pamp.1983). Section 74-2-3(A) grants the En-

vironmental Improvement board enforcement authority

except in “municipalities within A class counties or A

class counties which have elected, by adopting the ap-

propriate ordinance, to assume jurisdiction for the ad-

ministration and enforcement of the Air Quality Control

Act.” ?

The Act specifically provides in Section 74-2-4(A) that:

* An “A class county” is defined by NMSA 1978, Section 4-44-1

(Repl.Pamp. 1980) as counties “having a final, full assessed valua-

tion of over seventy-five million dollars ($75,000,000) and having

a population of one hundred thousand persons or more as deter-

mined by the last official United States census[.]”

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A class counties and any municipality wthin an A

class county which provides for air quality control

shall, by ordinance, provide for the local administra-

tion and enforcement of the Air Quality Control Act

* * * | The provision of any such ordinance shall be

consistent with the substantive provisions of the Air

Quality Control Act * * *. (emphasis added).

The enforcement under the Act is civil in nature with

two exceptions which are contained in Section 74-2-14.

Section 74-2-14 provides in pertinent part:

A. [A]ny A class county or municipality within

an A class county may prescribe penalties for viola-

tions of an ordinance:

* * * *

(2) prohibiting the removal of motor vehicle

emission control devices installed as required by

law and requiring the maintenance of [motor

vehicle emission control] devices in operating

condition.

B. [I]t shall be a petty misdemeanor to violate

any regulation of the environmental improvement

board:

(2) prohibiting the removal of motor vehicle

emission control devices installed as required by

law or requiring the maintenance of [motor

vehicle emission control] devices in operating

condition. (emphasis added).

The question becomes whether the Act, which under

Apodaca is a “general state law”, in any way “expressly

denies” the City the authority to provide for criminal

sanctions.

Our reading of Apodaca leads to the inescapable con-

clusion that not only is there no express denial of that

authority, but the Legislature specifically authorized it in

Section 74-2-14. The fact that the Legislature provided

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additional civil penalties and prescribed the penalty for

violation of board regulations does not eliminate that

authority.

We therefore determine that the criminal penalty pro-

visions of the Program are not invalid.

IV. Severability Clause.

Having determined that at least two provisions of the

ordinances are invalid, we address the effect of our deci-

sion. The ordinances have the following severability

clause:

If any section, subsection, sentence, clause, word or

phrase of this ordinance is for any reason held to be

unconstitutional or otherwise invalid by any court of

competent jurisdiction, such decision shall not affect

the validity of the remaining portions of this ordi-

nance.

We have previously addressed the effect of the inclusion

of a severability clause in an ordinance. In Schwartz v.

Town of Gallup, 22 N.M. 521, 529, 165 P. 345, 348

(1917) we stated:

A part of the law may be unconstitutional and the

remainder of it valid, where the objectionable part

may be properly separated from the other without

impairing the force and effect of the portion which

remains, and where the legislative purpose as ex-

pressed in such valid portion can be accomplished

and given effect, independently of the void provi-

sions, and where if the entire act is taken into con-

sideration it cannot be said that the enacting power

would not have passed the portion retained had it

known that the void provisions must fall. (citation

omitted).

We have determined that a severability clause raises a

presumption that the legislating body would have enacted

the rest of the ordinance without the void section. Bar-

ber’s Super Markets v. City of Grants, 80 N.M. 533, 458

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P.2d 785 (1969). The severability clause in this case is

emphatic in its statement that the ordinances would have

been enacted even if the invalid provisions were not

included.

We therefore determine that the invalid provisions do

not invalidate the ordinances.

V. Conclusion.

We are aware of the tremendous problem the govern-

ment faces in trying to alleviate air pollution, some of

which can be atcributed to motor vehicle emissions. We

are also aware of the difficulty involved in developing a

program that meets the objective of clean air while com-

plying with statutory and constitutional limitations. How-

ever, it is not for the courts to develop such a program,

but rather it is the responsibility of the Legislature, the

City, and the County to do so.

We conclude that the Program may be continued with-

out imposition of a fee and without a repair cap for

vehicles that do not come into compliance; otherwise, the

Council and Commission will have to discontinue the

Program.

IT IS SO ORDERED.

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SOSA, Senior Justice, specially concurring.

FEDERICI, C.J., and STOWERS and WALTERS,

JJ., concurring in part and dissenting in part

SOSA, Senior Justice, specially concurring.

I concur with the four points in this opinion. How-

ever, under Point II, I would address the equal protection

issue that was raised in oral argument, but not presented

in the briefs. Specifically, the question of whether the

program should be applied to all state residents or merely

to residents of Bernalillo County is one that I believe

merits attention. In Wylie Brothers Contracting Co. v.

Albuquerque-Bernalillo County Air Quality Control Board,

80 N.M. 633, 459 P.2d 159 (Ct.App.1969), an opinion

dealing with air pollution regulations, Justice Oman

anticipated the problems we would encounter if regula-

tions and controls were only local and not statewide.

There he prophetically stated:

To draft, and particularly to enforce, regulations

for the control of emissions from these highly mobile

vehicles on a single county-wide basis, would be ex-

tremely difficult. The making of regulations relative

to the control of emissions from these vehicles belongs

to an agency with far greater geographic jurisdic-

tion than that of a single county. The control thereof

should be left very largely, if not entirely, to the

state and federal governments. (emphasis added).

Id. at 644, 459 P.2d at 170.

This is an issue of significant importance and general

public nature affecting the interest of the state at large

and, as such, this Court may consider it. DesGeorges v.

Grainger, 76 N.M. 52, 412 P.2d (1966). All citizens, not

only those in Bernalillo County, should be afforded pro-

tection against air pollutants. A statewide program

against vehicular pollution would equally regulate all ve-

hicles in the state and remove the inequities in the pro-

gram. As presently enforced, the pollution control pro-

~~

gram subjects only residents of Bernalillo County to the

Inspection Program. The greater Albuquerque metro-

politan area covers other counties. Citizens of these out-

side counties use Bernalillo County roads daily yet are

not subject to the Inspection Program. This appears to

me to be an arbitrary, unfair and selective imposition

of a regulation on Bernalillo County residents.

It is my reading of Section 66-6-25, NMSA 1978, of

the Motor Vehicle Code, that the statute directly prohibits

the charging of any fees in connection with the opera-

tion of motor vehicles, no matter how noble the purpose.

As a matter of public policy and with deep concern for

the health and welfare of New Mexico citizens, I agree

with the need for an effective program to prevent in-

creased air pollution. However, it is not within the

province of the judiciary to change Section 66-6-25. The

legislature must remedy this defect.

FEDERICI, Chief Justice and WALTERS, Justice

(concurring in part, dissenting in part).

We concvr in Justice Riordan’s disposition of Points

II, III, and IV. We disagree with the decision regarding

Point I since Section 66-6-25, NMSA 1978, refers to pro-

scription of fees for “registration” of vehicles by a county

or municipality, and not to fees for other purposes. We

therefore respectfully dissent on that issue.

STOWERS, Justice (concurring in part, dissenting in

part).

I concur in the disposition of points I, II, and IV of

the opinion. I dissent as to point III, in that the imposi-

tion of criminal penalties exceeds the legislative authority

which is limited to civil sanctions and fines.

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APPENDIX C

42 U.S.C.

§ 1988. Proceedings in vindication of civil rights

The jurisdiction in civil] and criminal matters conferred

on the district courts by the provisions of this Title, and

of Title “CIVIL RIGHTS,” and of Title “CRIMES,” for

the protection of all persons in the United States in their

civil rights, and for their vindication, shall be exercised

and enforced in conformity with the laws of the United

States, so far as such laws are suitable to carry the same

into effect; but in all cases where they are not adapted to

the object, or are deficient in the provisions necessary to

furnish suitable remedies and punish offenses against law,

the common law, as modified and changed by the consti-

tution and statutes of the State wherein the court having

jurisdiction of such ivil or criminal cause is held, so far

as the same is not inconsistent with the Constitution and

laws of the United States, shall be extended to and

govern the said courts in the trial and disposition of the

cause, and, if it is of a criminal nature, in the infliction

of punishment on the party found guilty. In any action or

proceeding to enforce a provision of sections 1977, 1978,

1979, 1980, and 1981 of the Revised Statutes [42 USCS

$$ 1981-1983, 1985, 1986], title IX of Public Law 92-318

[20 USCS §§ 1681 et seq.], or title VI of the Civil Rights

Act of 1964 [42 USCS §§ 2000d et seq.], the court, in its

discretion, may allow the prevailing party, other than the

United States, a reasonable attorney’s fee as part of the

costs.

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APPENDIX D

COMPLAINT

* * + *

COUNT SIX

(Equal Protection)

31. Petitioners re-allege paragraphs 1 through 30 in

full.

32. The City Ordinance, County Ordinance and Regu-

lations deprive Petitioners of equal protection under the

law in that:

A. Motor vehicles manufactured before the 1967

model year are unreasonably exempted notwithstand-

ing the fact that such vehicles contribute to hydro-

carbon and carbon monoxide air pollution in the City

and County;

B. Motor vehicles which are tested and fail are

unreasonably exempted if they can be shown to pol-

lute the air so badly that it would cost more than

$75.00 to fix them; and,

C. Motor vehicles manufactured from the 1967

model year through the 1982 model year unreason-

ably, artificially and arbitrarily, and without natural

basis, are not exempted and must comply as a result

of which owners of such motor vehicles would bear

the entire burden of paying for and complying with

the City Ordinance, County Ordinance and Regula-

tions notwithstanding the fact that such persons are

not fully responsible for hydrocarbon and carbon

monoxide air pollution from motor vehicle emissions.

33. To the extent the City Ordinance, County Ordi-

nance and Regulations impose and create a denial of equal

protection under the law to citizens of the City and

County, they are unlawful and should not be enforced.