Opposition Brief — Chapman v. Luna

No. 85-389

—_—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

JOHN J. CHAPMAN, et al.,

Petitioners,

Vv.

ROBERT E. LUNA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of New Mexico

RESPONDENTS’ BRIEF IN OPPOSITION

MARK B. THOMPSON, III

Counsel of Record

Post Office Box 2168

Albuquerque, New Mexico 87103-2168

Telephone: (505) 848-1800

Gary O. O’DowpD

CHARLES J. BRIDEAU

Post Office Box 1293

Albuquerque, New Mexico 87103

HUNTER L. GEER

Post Office Box 8248

Albuquerque, New Mexico 87198

Counsel for Respondents

WILSON - Erase Printing Co... inc. - 789-0096 - WASHINGTON. D.C. 20001

BEST AVAILABLE COPY

AN 4

QUESTION PRESENTED

Whether or not, as a condition precedent to a request

for an award of reasonable attorney’s fees pursuant to 42

U.S.C. § 1988, Petitioners were prevailing parties in any

action or proceeding to enforce a provision of 42 U.S.C.

§ 1983?

(i)

ii

LIST OF ALL PARTIES WHOSE JUDGMENT

IS SOUGHT TO BE REVIEWED

The Petitioners, Plaintiffs in the New Mexico sta'te

court proceeding, are John J. Chapman, Troy H. Elliott

and N. Altom. The Respondents are Robert L. Luna,

Ph.D., Ann Hyde, Erika Jones, Jonathan Samet, Ph.D.,

Gary Lewis, James Montoya, Mike Creusere, the City of

Albuquerque, New Mexico, and the Board of County Com-

missioners of Bernalillo County, New Mexico.

TABLE OF CONTENTS

Page

OS 1 Gg 2 yy ) aie i

LIST OF ALL PARTIES WHOSE JUDGMENT IS

SOUGHT TO BE REVIEWED... ii

po cs iii

py a ig 8g 8 Sr Vv

oii cmcpusinecustctancesneoonctieneees 1

UN OO occ cicanivcnnsnnsnnneconranneesace 1

Pim emeems Ge fae CARDS ......................2...-s.-.0.--00.- 3

SUMMARY OF THE ARGUMENT .........0.02.2 ee. 4

PIE aisles lene ci topcn epic sb nchbriseaivnsenssonsstovebosane. 4

PETITIONERS WERE NOT PREVAILING PAR-

TIES IN ANY ACTION OR PROCEEDING TO

ENFORCE A PROVISION OF 42 U.S.C. § 1983

AND WERE PROPERLY DENIED ATTORNEY’S

FEES AS A PART OF THEIR COSTS .................... 4

A. The Petitioners’ original petition for Writ of

Mandamus, recast as a complaint for declaratory

judgment, does not allege any deprivation of

rignes unger 42 U.S.C. $1968 ............................ 4

B. The New Mexico Supreme Court did not find

that the Respondents had been injured by a de-

privation of any right, privilege or immunity

secured by the Constitution and laws of the

a cal eusdcegenmenian 6

C. Petitioners did not specifically claim that their

action was brought pursuant to 42 U.S.C. § 1983

until after they had prevailed on some other

a sepaaancnipaiioncanes 7

D. The Petitioners are not entitled to attorney’s

fees as a part of their costs _...........e eee 8

ci iaccadertcidnstibci ocettahiescnpnisaribiceanisinceniansnaenss 8

iv

TABLE OF CONTENTS—Continued

APPENDICES

APPENDIX A—Opinion Filed June 11, 1985 in the

Supreme Court of the State of New

RM LAME st

APPENDIX B— Petition For Writ of Mandamus Filed

January 2, 1983 in the District Court..

APPENDIX C— Order Filed January 14, 1983 in the

PE NE a es screens

APPENDIX D—Order Filed February 8, 1983 in the

IE I ccc cites eek sosedesceee

APPENDIX E— Opinion Filed March 13, 1984 in the

Supreme Court of the State of New

lh aan AE Bact EE Ee KORA an

APPENDIX F— Motion for Attorney’s Fees Filed April

4, 1984 in the District Court ..............

APPENDIX G— Order Filed July 2, 1984 in the Dis-

I I orca

Page

v

TABLE OF AUTHORITIES

CASES: Page

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

CII Naticeteencliestasieteincdcieciaetin tease ee Re SO aa passim

Chapman v. Luna, 701 P.2d 367 (N.M. 1985) .......... passim

Estes v. Tuscaloosa County, 696 F.2d 898 (11th

| ESR RE AES orate ear ae eG 7

Gardner v. Luckey, 500 F.2d 712, 714 (5th Cir.

1974), cert. denied, 423 U.S. 841 (1975) ............ 6

Gomez v. Toledo, 446 U.S. 635, 640 (1980) -........... 6

Nall v. Baca, 95 N.M. 783, 626 P.2d 1280 (1980)... 7

Russo v. State of New York, 672 F.2d 1014, 1022

Be RR Serco ee ee Tannen 8

Warth v. Seldin, 422 U.S. 490, 508 (1975) —............ 5

Webb v. Board of Education, 105 S. Ct. 1923

CUE “iticdchee ae ke 7,8

FEDERAL STATUTORY PROVISIONS:

Fee ie I aia cecsacaice eaten tices passim

I i adipcblenct sethantes eines passim

MISCELLANY:

Browde, Survey of New Mexico Administrative

Law, 12 N.M.L. Rev. 1, 85 (1982) .............0000..... 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-389

JOHN J. CHAPMAN, et al.,

‘ Petitioners,

ROBERT E. LUNA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of New Mexico

RESPONDENTS’ BRIEF IN OPPOSITION

OPINION BELOW

The opinion of the Supreme Court of the State of New

Mexico, a copy of which is attached as Appendix A, has

been reported. Chapman v. Luna, 701 P.2d 367 (N.M.

1985).

STATUTES INVOLVED

Civil Action for Deprivation of Rights: 42 U.S.C.

§ 1983:

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

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

or Territory or the District of Columbia, subjects, o1

causes to be subjected, any citizen of the United

2

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or im-

munities 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 re-

dress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Co-

lumbia shall be considered to be a statute of the Dis-

trict of Columbia.

Proceedings in Vindication of Civil Rights; Attorney’s

Fees: 42 U.S.C. § 1988:

The jurisdiction in civil and criminal matters con-

ferred 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 vin-

dication, shall be exercised and enforced in confor-

mity 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 constitution and statutes of the State wherein the

court having jurisdiction of such civil 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 1981, 1982, 1983,

1985, and 1986 of this title, title IX of Public Law

92-318, or title VI of the Civil Rights Act of 1964,

the court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable at-

torney’s fee as part of the costs,

3

STATEMENT OF THE CASE

This action was commenced in the District Court for

the County of Bernalillo, State of New Mexico, on Jan-

uary 2, 1983 by the filing of a Petition for Writ of

Mandamus by the Petitioners. (App. B). By order of

the court entered January 14, 1983, the Petition for Writ

of Mandamus was “recast” as a complaint for declara-

tory judgment. (App. C). As amended, the petition

(complaint) sought a judgment declaring that the Motor

Vehicle Emissions Control Ordinances of both the City

of Albuquerque and the County of Bernalillo, New Mex-

ico were contrary to various New Mexico statutes, cer-

tain common law principles and the Constitution of both

the United States and the State of New Mexico.

The petition (complaint) for declaratcry judgment was

set forth in seven separate counts. (App. B). Prior to

trial, the Plaintiffs abandoned Count Two and, on Feb-

ruary 8, 1983, the District Court entered an order dis-

missing the remaining counts. (App. D). On appeal,

the New Mexico Supreme Court affirmed in part and

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

P.2d 687 (1984). (App. E). The court found in favor

of Petitioners on that portion of Count Six of the Com-

plaint contained in Paragraph 32(b). (App. B, p. 12).

The court held that the provision allowing certain ve-

hicles to come into compliance by obtaining a maximum

of $75.00 in repairs was not rational, did not have a

reasonable basis and was therefore invalid. (App. E, pp.

11-14).

After remand to the District Court, Petitioners moved

for an order awarding them attorney’s fees pursuant to

42 U.S.C. §$§ 1983 and 1988. (App. F). On July 2, 1984

the District Court entered a declaratory judgment in con-

formity with the opinion of the Supreme Court of New

Mexico and denied the motion for the award of attor-

ney’s fees. (App. G). The Order was upheld by the

Supreme Court of the State of New Mexico on June 11,

4

1985. Chapman v. Luna, 701 P.2d 367 (N.M. 1985).

(App. A).

SUMMARY OF THE ARGUMENT

The Petitioners made no claim that any of them had

been injured by reason of a deprivation of any right,

privilege or immunity secured by the Constitution and

laws of the United States. Petitioners made no con-

clusory allegation in their complaint that they based any

claims on 42 U.S.C. § 1983. The New Mexico Supreme

Court did not find that the Petitioners were entitled to a

judgment for injuries resulting from a deprivation of

any right, privilege or immunity secured by the Con-

stitution and laws of the United States. The New Mex-

ico Supreme Court did not find that the Petitioners were

entitled to judgment pursuant to 42 U.S.C. § 1983. The

Petitioners did not prevail in any action or proceeding

to enforce a provision of 42 U.S.C. § 1983. The Peti-

tioners did not allege any rights under 42 U.S.C. § 1983

until their action had been remanded for entry of judg-

ment consistent with the decision of the New Mexico Su-

preme Court. Petitioners are not entitled to attorney’s

fees pursuant to 42 U.S.C. § 1988.

ARGUMENT

PETITIONERS WERE NOT PREVAILING PARTIES

IN ANY ACTION OR PROCEEDING TO ENFORCE A

PROVISION OF 42 U.S.C. §1983 AND WERE PROP-

ERLY DENIED ATTORNEY’S FEES AS A PART OF

THEIR COSTS

A. The Petitioners’ original petition for Writ of Manda-

mus, recast as a complaint for declaratory judgment,

does not allege any deprivation of rights under 42

US.C. § 1983.

Petitioners assert that they were deprived of attorney’s

fees by a subsequent narrow construction of the holding

in favor of Petitioners on the merits of the action. Pe-

5

titioners would have this Court believe that the Supreme

Court of New Mexico evaded the real issue on whether

or not Petitioners were entitled to attorney’s fees, by

holding that Petitioners had prevailed on the merits only

pursuant to the Equal Protection Clause of the Con-

stitution of the State of New Mexico. In fact, the New

Mexico Supreme Court specifically found that Petitioners

did not specifically plead a federal equal protection claim

“or a claim under 42 U.S.C. Section 1983.” Chapman v.

Luna, 701 P.2d at 369. (App. A, p. 4).

As the Court will see from examination of Petitioners’

original pleading in the District Court (App. B), the

Petitioners did not allege an injury based upon a depri-

vation of their civil rights. None of the Petitioners

sought any personal relief, in the form of damages or

equitable relief, against the Respondents. Their original

pleading sought only a mandatory injunction, prohibiting

the Respondents from enforcing the ordinances as a gen-

eral proposition. (App. B, p. 14).

In Count Six, Petitioners claim that the ordinances and

regulations deprived them “of equal protection under the

law” because “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... .” (App. D, p. 12). Count Six makes no

claim that any of the Petitioners were specifically in-

jured because the City and County Ordinances would ex-

empt a motor vehicle from full compliance with the air

pollution laws if the vehicle obtained a maximum of

$75.00 in repairs.

A claimant under Section 1983, whether seeking in-

junctive relief or damages, must allege specific concrete

facts demonstrating that the challenged practices of the

person acting under color of state law actually harmed

the claimant. Warth v. Seldin, 422 U.S. 490, 508 (1975).

It is not sufficient, for the purposes of pleading under

42 U.S.C. § 1983, that the plaintiff merely allege that the

public officials have failed to meet constitutional stand-

6

ards. The complaint must allege that the plaintiff him-

self was injured by the conduct of the public officials.

Gardner v. Luckey, 500 F.2d 712, 714 (5th Cir. 1974),

cert. denied, 423 U.S. 841 (1975).

The New Mexico Supreme Court, consistent with this

Court’s decisions, noted that the Petitioners did not spe-

cifically plead a federal equal protection claim. (App. A,

p. 4). This Court has indicated that a claimant under 42

U.S.C. § 1983 “must allege that some person has de-

prived him of a federal right ... .” Gomez v. Toledo,

446 U.S. 635, 640 (1980). Paragraph 32 of the Com-

plaint makes no mention of the United States Constitu-

tion but only claims that the ordinances and regulations

“deprive Petitioners of equal protection under the law

....” (App. B, p. 12). A comparison of Count 6 with

Count 3 indicates that Petitioners knew how to allege a

deprivation of a federal right. In Count 3 they claimed

that they were deprived of the freedom to contract, “a

right protected by the United States Constitution.” (App.

B, p. 8).

B. The New Mexico Supreme Court did not find that the

Respondents had been injured by a deprivation of any

right, privilege or immunity secured by the Constitu-

tion and laws of the United States.

The New Mexico Supreme Court, in its decision on the

merits, held that the applicable provision of the ordi-

nances is “not rational . . . does not have any reasonable

basis, nor is it designed to further the objectives of

cleaning up the air... .” (App. E, p. 13). The Court

also determined that the $75.00 repair provision “is in-

valid.” (App. E, p. 14). Although the opinion on the

merits reads more like an interpretation of legislative

intent, it is arguable that the court found that the or-

dinances violated “equal protection standards.” (App.

A, p. 2).

Absent from the findings declaring a portion of the

ordinances invalid is a finding that these Petitioners were

7

specifically denied the equal protection of the laws. The

Court’s declaration that the ordinances violate “equal

protection standards” (App. A, p. 2; App. E, p. 11), is

consistent with the tendency of New Mexico courts to

issue declaratory judgments on constitutional issues with-

out requiring a specific injury or exhaustion of adminis-

trative remedies. See generally Browde, Survey of New

Mexico Administrative Law, 12 N.M.L.Rev. 1, 85 (1982).

See, ¢.g., Nall v. Baca, 95 N.M. 783, 626 P.2d 1280

(1980) where the court affirmed a declaratory judgment

upholding the constitutionality of a state statute pro-

hibiting nude dancing in a licensed liquor establishment,

without requiring the plaintiff to exhaust administrative

remedies. In effect, the New Mexico Supreme Court

takes an expansive view of its duty to protect the public

by issuing declaratory judgments on statutes and ordi-

nances when the statute or ordinance is in violation of a

constitutional provision.

C. Petitioners did not specifically claim that their action

was brought pursuant to 42 U.S.C. § 1983 until after

they had prevailed on some other ground.

The first mention by Petitioners of any claim pursuant

to 42 U.S.C. § 1983 is in their motion for attorney’s fees

filed after remand to the District Court. (App. F). Pe-

titioners claim that they had sought relief under 42

U.S.C. § 1983 was an after-thought, based entirely on

their desire to obtain attorney’s fees as a part of their

costs of bringing the mandamus/declaratory judgment ac-

tion. Having not made a specific claim, nor having pre-

vailed, under 42 U.S.C. § 1983, the Petitioners are not

entitled to seek attorney’s fees under 42 U.S.C. § 1988

in what amounts to a collateral proceeding. Cf., Estes

v. Tuscaloosa County, 696 F.2d 898, 901 (11th Cir. 1983)

(independent action for attorney’s fees) and Webb v.

Board of Education, 105 S.Ct. 1923 (1985) (attorney’s

fees may not be awarded in § 1983 action for work done

in prior administartive hearing).

8

D. The Petitioners are not entitled to attorney’s fees as

a part of their costs.

Having failed to allege any claim under 42 U.S.C.

§ 1983 and having prevailed in the New Mexico Supreme

Court on some constitutional ground, but without estab-

lishing that any of the Petitioners sustained a depriva-

tion of any right, privilege or immunity secured to them

by the Constitution and laws of the United States, these

Petitioners sought attorney’s fees as an after-thought.

“The plain language of section 1988 is unambiguous.”

Russo v. State of New York, 672 F.2d 1014, 1022 (2d

Cir. 1982). “Congress only authorized the district courts

to allow the prevailing party a reasonable attorney’s fee

in an ‘action or proceeding to enforce [§ 1983]’.” Webb

v. Board of Education, supra, 105 S.Ct. at 1928. These

Petitioners did not institute any action or proceeding to

enforce a provision of § 1983 and therefore could not

have prevailed within the meaning of 42 U.S.C. § 1988.

CONCLUSION

For the foregoing reasons, Respondents respectfully

pray that the Court deny the Petition for Writ of

Certiorari.

Respectfully submitted,

MARK B. THOMPSON, III

Counsel of Record

Post Office Box 2168

Albuquerque, New Mexico 87103-2168

Telephone: (505) 848-1800

Gary O. O’DowpD

CHARLES J. BRIDEAU

Post Office Box 1293

Albuquerque, New Mexico 87103

HUNTER L. GEER

Post Office Box 8248 |

Albuquerque, New Mexico 87198

Counsel for Respondents

i atin

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-Appellees,

VS.

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

Defendants-A ppellees,

and Cross-Appellants,

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

Charles Brideau

Albuquerque, NM For Appellee City of Albuquerque

Hunter Geer

Joe Diaz

Albuquerque, NM For Appellee County of Bernalillo

Sutin, Thayer & Browne wi

Philip Higdon

Santa Fe, NM For Hamilton Test Systems

2a

OPINION

FEDERICI, Chief Justice.

Plaintiffs-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 Chanman v. Luna I, plaintiffs were successful in

having two aspects of the Program invalidated by this

Court. Thedmspection 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 ices. 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: “[i]Jn 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.

| caesar

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.2d 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 thi: Court did

not decide that issue under compulsion of iae 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

STATE OF NEW MEXICO

IN THE DISTRICT COURT

COUNTY OF BERNALILLO

No. CV-83-00001

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

Petitioners,

Vs.

ROBERT E. LUNA, Ph.D., ANN HYDE, ERIKA JONES, JONA-

THAN SAMET, Ph.D., GARY LEWIS, JAMES MONTOYA

and MIKE CREUSERE, as raembers of the Albuquerque/

Bernalillo-County Air Quality Control Board, the City

OF ALBUQUERQUE, an incorporated municipality, and

the COUNTY OF BERNALILLO, a political subdivision of

the State of New Mexico,

Respondents.

PETITION FOR WRIT OF MANDAMUS

PETITIONERS John J. Chapman, Troy H. Elliott and

N. Altom, by and through their attorney, Bruce E. Pas-

ternack, P.C., state for their Petition for Writ of Man-

damus:

1. Petitioners are residents of Albuquerque, Bernalillo

County, New Mexico, and owners of motor vehicles hav-

ing a model year after 1967 and before 1983. As such,

Petitioners are subject to enforcement of the following

ordinances and regulations scheduled to take effect Jan-

uary 3, 1983:

A. City of Albuquerque Motor Vehicle Emissions

Control Ordinance, § 6-4-1 et seq., 1974 Revised Or-

Ta

dinance Book, a certified copy of which is attached

herewith as Exhibit A (hereafter “City Ordinance’’) ;

B. Bernalillo County Motor Vehicle Emissions

Control Ordinance, No. 81-31, a certified copy of

which is attached herewith as Exhibit B (hereafter

“County Ordinance’’) ; and,

C. Albuquerque/Bernalillo County Air Quality

Control Board Motor Vehicle Inspection Regulation

No. 28, a certified copy of which is attached here-

with is attached herewith as Exhibit C (hereafter

“Regulations’’).

Petitioner Chapman is in direct and immediate danger of

having the City Ordinance, County Ordinance and Regu-

lations enforced against him as is evidenced by the In-

spection/Maintenance Program Notice (hereafter ‘“No-

tice’), a copy of which is attached herewith as Exhibit

D.

2. Respondents Robert E. Luna, Ph.D., Ann Hyde,

Erika Jones, Jonathan Samet, Ph.D., Gary Lewis, James

Montoya and Mike Creusere are the duly appointed, qual-

ified and acting members of the Albuquerque/Bernalillo

County Air Quality Control Board (hereafter Board”),

a joint board established by an A class county responsible

for the administration and enforcement of the provisions

of the New Mexico Air Quality Control Act, § 74-2-1 et

seq., N.M.S.A. 1978 (hereafter “Air Act’’), and function-

ing pursuant to ‘he Air Act. Respondent City of Al-

buquerque (hereafter “City”) is an incorporated munici-

pality operating as a political subdivision of the State

of New Mexico. Respondent County of Bernalillo (here-

after “County”) is a political subdivision of the State

of New Mexico. In addition to being governed by the Air

Act, the Board is created by and governed by the City of

Albuquerque Air Quality Control Board Ordinance, § 6-

16-1 et seq., 1974 Revised Ordinance Book, a certified

copy of which is attached herewith as Exhibit E (here-

after “Board Ordinance”’).

8a

3. Pursuant to the City Ordinance and County Ordi-

nance, Albuquerque and Bernalillo County have enacted

an automobile inspection program (hereafter “Program” )

with the purported purpose of reducing hydrocarbon and

carbon monoxide pollution caused by certain motor ve-

hicles in the City and County. The Regulations were

called for by the City Ordinance and County Ordinance,

and as a result were promulgated and adopted by the

Board. The Regulations were filed of record with the

State Records Center on December 16, 1982, at 3:06

p.m. and 3:07 p.m. The Regulations were created to ef-

fectuate the Program.

4. The Program purports to operate in the following

manner:

1. The City and the County contract with a pri-

vate firm—in this case, the Hamilton Testing Sys-

tems division of United Technologies (hereafter

“UT”) to construct testing facilities pursuant to the

specifications set forth in a Request for Proposals

which is in the Respondents’ possession.

2. Citizens of the City and County are required

to bring their automobiles to the facilities, pay in

cash a $9.25 per vehicle charge for testing of their

vehicles, and are given a sticker signifying that

their vehicles passed if their emissions are within

certain guidelines.

8. Vehicles which fail the test are re-tested after

receiving repairs provided that vehicles receiving

over $75.00 in repairs will receive a sticker indicat-

ing compliance with the guidelines even if they do

not comply with the guidelines and emit hydrocar-

bons and carbon monoxide in excess of the guidelines.

4. A variety of other motor vehicles need not com-

ply with the City Ordinance and County Ordinance

by virtue of the Regulations, including:

9a

A. Motor vehicles manufactured during or

before the 1967 model year;

B. New motor vehicles registered for the

first time; and,

C. Motor vehicles in categories receiving var-

iances such as motor vehicles on new and used

ear lots and other categories of motor vehicles

exempted by the Regulations or by variance.

5. The $9.25 per vehicle fee must be paid in cash.

Approximately $6.18 per vehicle will be retained by

UT. The balance will be paid to the City and

County, $.93 per vehicle to be used to administer the

Program and the remainder to be paid back to UT

annually to pay for the difference between the num-

ber of motor vehicles actually tested annually and

the number of vehicles the City and County have

guaranteed UT would annually be tested (i.e. 328,444

motor vehicles in 1983).

6. Persons choosing not to participate in the Pro-

gram are subject to 90 days in jail and a $300.00

fine.

5. The program is scheduled to begin January 3, 1983,

with mandatory inspections and the above-referenced

criminal sanctions to begin that date.

COUNT ONE

(State Rules Act)

6. Petitioners re-allege paragraphs 1 through 5 in full.

7. Pursuant to the Air Act and the Board Ordinance,

no regulations enacted by the Board can take effect until

thirty (30) days after their filing with the State Records

Center.

8. As is evidenced by Exhibit C, the Regulations were

not so filed until December 16, 1982, at 3:06 p.m. and

eee

10a

3:07 p.m. Therefore, they cannot take effect until Jan-

uary 17, 1983.

9. The Regulations give effect to and begin operation

of the Program. The City and County have announced,

pursuant to Exhibit D, and thousands of Notices like it,

their intention to begin enforcing the Regulations and

operating the Program on January 3, 1983. Petitioners

are informed and believe that from 25,000 to 35,000 resi-

dents of the County have received forms substantially

identical to the Notice, and will face the threat of crimi-

nal liability if they do not participate in the Program.

10. Based on the foregoing, the Regulations are not

lawfully in force, and will not be lawfully in force until

January 17, 1983. Any attempt to enforce the Regula-

tions, or to operate the Prom «in which is effectuated by

the Regulations, before Je .uary 17, 1983, will be un-

lawful. The Board, the City and County have therefore

given notice of their intention to engage in unlawful

conduct.

WHEREFORE, on Count One Petitioners pray that

a Writ of Mandamus issue to and against the Respond-

ents herein enjoining them from enforcing the City

Ordinance, County Ordinance and Regulations until Jan-

uary 17, 1983, and from initiating any Program, col-

lecting any monies or imposing any penalty effectuated

thereby until January 17, 1983, unless the Alternative

Writ is converted to a Peremptory Writ on other grounds

in which case then permanently, for Petitioners’ attor-

ney’s fees and costs herein, and for such other relief as

the Court deems proper.

COUNT TWO

(Unenforceable as invalid exercise of police

power or unreasonable, arbitrary and capricious)

11. Petitioners re-alleged paragraphs 1 through 10 in

full.

lla

12. The Program is designed to annually inspect

328,444 motor vehicles at two (2) inspection stations

each having four (4) inspection bays. The City and

County have guaranteed UT that it will be paid for in-

specting 328,444 motor vehicles in 1983. This does not

count vehicles which fail the inspection at first and must

be re-inspected.

13. Each per vehicle inspection is reported by the

City, County and UT to take approximately five (5)

minutes.

14. It is mathematically impossible for the number of

motor vehicles the Program is designed to inspect to be

inspected in one (1) calendar year during UT’s an-

nounced hours of operation. In fact, not even the actual

number of 1967 and later model year motor vehicles

registered in Bernalillo County and not otherwise exempt

from the City Ordinance, County Ordinance and Regula-

tions can be inspected in that time period.

15. Therefore, persons wishing to comply with these

laws will be prevented by the very nature of these laws

from complying, and will, therefore, face criminal liability.

16. Subjecting the citizens of this City and County to

criminal liability where the laws cannot be complied with

is an invalid exercise of the police power. Moreover, any

legislative scheme creating such a system is unreason-

able, arbitrary and capricious. To the extent the City

Ordinance, County Ordinance and Regulations mandate

compliance under threat of criminal liability they are

unlawful and should not be enforced.

COUNT THREE

(Freedom to Contract)

17. Petitioners re-allege paragraphs 1 through 16 in

full.

12a

18. The freedom to contract with whosoever one

pleases, or to refrain from so contracting, is a right pro-

tected by the United States Constitution.

19. Where a private party (such as UT) provides a

service, even where that service is provided under gov-

ernmental authority, the only lawful penalty for choos-

ing to not receive that service is to not receive it. It is

unlawful, and a violation of constitutionally guaranteed

freedoms for a criminal penalty to be imposed on. one

choosing to exercise the freedom not to contract with a

private party.

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

nance and Regulations impose a criminal penalty for

choosing not to participate in the Program, they are

unlawful and should not be enforced.

COUNT FOUR

(Tax)

21. Petitioners re-allege paragraphs 1 through 20 in

full.

22. The imposition of the $9.25 per vehicle “fee” for

inspection of motor vehicles is the levying of a tax. The

City and County can only impose criminal liability on

those who do not pay a tax, not upon those who do not

pay a fee for a service.

23. Pursuant to § 3-18-2, N.M.S.A. 1978, as amended,

a municipality cannot impose an excise tax, and in par-

ticular an excise tax related to motor vehicles, without

first obtaining the approval of the voters in that mu-

nicipality.

24. The voters of the City and County have not been

asked to approve the City Ordinance, the County Or-

dinance and the Regulations which contain an excise tax

of $9.25 per vehicle per year, and which—by virtue of

the contract with UT—is designed to collect approxi-

13a

mately fifteen million dollars ($15,000,000.00) in excise

taxes from the citizens of the City and the County over

| the next five (5) years.

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

| nance and Regulations impose an excise tax, they are

unlawful and should not be enforced.

COUNT FIVE

(Inspectien Fee)

26. Petitioners re-allege paragraphs 1 through 25 in

full. :

27. If Respondents claim and prove that the $9.25

per vehicle charge assessed by the Program is not an ex-

cise tax, then it can only be an inspection fee.

28. If the charge is an inspection fee, it is unlawful

for the following reasons:

A. An inspection fee can only be in an amount

necessary to cover the government’s cost of the in-

spection program. The charge in this case covers:

1. Approximately $6.18 per vehicle to UT;

2. Approximately $.90 per vehicle to the

Board;

3. Approximately $.28 per vehicle for “public

relations”; and,

4. The balance to a fund which will pay UT

for the difference between 328,444 paid inspec-

tions and the actual number of paid inspections

made at $6.18 per inspection.

Therefore, over $8.00 per inspection will go to ex-

penses other than cost to the government, and over

$3.00 per inspection will go to matters completely

unrelated to any expenses of inspection. Conse-

Se a ee ee oe ne

l4a

quently, all or part of the “inspection fee” is un-

lawful.

B. A government entity cannot charge for an in-

spection fee in any different manner than the

charges it makes for any other government service.

Since the City and County accept payment for

water, sewer and refuse removal by check, there is

no valid reason to require cash payment (as opposed

to payment by check) for the “inspection fee,” and

the cash requirement is unreasonable.

29. Likewise, if the charge is an inspection fee, that

part of the City Ordinance and County Ordinance im-

posing criminal liability of up to ninety (90) days in

jail and up to a $300.00 fine is unlawful for the follow-

ing reasons:

A. Payment for inspection fees cannot be coerced

by threat of criminal penalty, nor can non-payment

be punished by criminal penalty; and,

B. Imposing or threatening to impose a criminal

penalty for non-payment of an inspection fee is to

imprison or threaten to imprison for non-payment of

a debt which is unlawful.

30. Therefore, both the mandatory charge and the

penalty set forth in the City Ordinance and County Or-

dinance are unlawful.

COUNT SIX

(Equal Protection )

31. Petitioners re-allege paragraphs 1 through 30 in

full.

32. The City Ordinance, County Ordinance and Reg-

ulations deprive Petitioners of equal protection under the

law in that:

A. Motor vehicles manufactured before the 1967

model year are unreasonably exempted notwithstand-

15a

ing the fact that such vehicles contribute to hydro-

earbon 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.

COUNT SEVEN

(Referendum Requirement)

34. Petitioners re-allege paragraphs 1 through 33 in

full.

35. Pursuant to the County Ordinance, the terms of

the County Ordinance, including the Program, cannot

legally take effect until the County Ordinance has been

approved by a referendum election of the voters in the

County. The County Ordinance has never been presented

for a referendum in the County, nor has it been ap-

proved in a referendum. Therefore, the Program cannot

lawfully be commenced in the County at this time, and

until such referendum is conducted.

16a

WHEREFORE, on Counts Two through Seven Peti-

tioners pray that a Writ of Mandamus issue to and

against the Respondents herein enjoining them from

enforcing the City Ordinance, County Ordinance and Reg-

ulations permanently including all phases thereof and

from initiating and conducting any Program, collecting

any monies, or imposing any penalty created thereby,

for Petitioners’ attorney’s fees and costs herein, and for

such other relief as the Court deems proper.

BRUCE E. PASTERNACK

Professional Corporation

by /s/

BRUCE E. PASTERNACK

Attorney for Petitioners

Post Office Box 985

Albuquerque, New Mexico 87103

(505) 842-1800

by /s/

MICHAEL J. CONDON

Attorney for Petitioners

Post Office Box 985

Albuquerque, New Mexico 87103

(505) 842-1800

17a

APPENDIX C

STATE OF NEW MEXICO

IN THE DISTRICT COURT

COUNTY OF BERNALILLO

No. CV-83-00001

ahs

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

| Petitioners,

vs.

ROBERT E. LUNA, Ph.D., ANN HYDE, ERIKA JONES, JONA-

THAN SAMET, Ph.D., GARY LEWIS, JAMES MONTOYA

) and MIKE CREUSERE, as members of the Albuquerque/

Bernalillo County Air Quality Control Board, the CITY

) OF ALBUQUERQUE, an incorporated municipality, and

/ the COUNTY OF BERNALILLO, a political subdivision of

the State of New Mexico,

Respondents.

[Filed Jan. 14, 1983]

ORDER

THE MATTER having come before the Court on Re-

spondents’ oral Motion to Dismiss for Lack of Jurisdic-

tion, and the Court being duly advised FINDS that the

Court has jurisdiction of the subject matter and parties

herein, but that this action should properly be brought

as a suit for declaratory judgment.

IT IS, THEREFORE, ORDERED as follows:

ea eee

18a

1. The Petition for Writ of Mandamus shall be recast

as a Complaint for Declaratory Judgment. Rather than

requiring Petitioners to re-file their pleadings, the Peti-

tion heretofore filed shall be amended by interlineation

as follows:

A. The caption of this case shall be amended desig-

nating Petitioners as Plaintiffs and Respondents

as Defendants.

B. The heading of the former Petition shall be

amended to read “Complaint for Declaratory

Judgment and Other Relief.”

C. Defendant County of Bernalillo shail be desig-

nated “Defendant Board of County Commission-

ers of the County of Bernalillo.”

D. The relief requested shall be declaratory judg-

ments for the reasons set forth in the Com-

plaint rather than relief in mandamus.

2. Defendants have agreed to waive, and will there-

fore waive, the thirty (30) day period to which they

would otherwise be entitled before filing their Answers.

Answered will be filed by the Defendants by January 17,

1983.

3. Defendant Board of County Commissioners of Ber-

nalillo County is granted ieave to file a Motion to Dismiss

on or before January 17, 1983.

4. Plaintiffs shall submit a list of witnesses and ex-

hibits to Defendants by January 17, 1983. The witness

list shall include the nature of the expected testimony of

each witness.

5. Defendants shall submit a list of witnesses and ex-

hibits to Plaintiffs by January 19, 1988. The witness

list shall include the nature of the expected testimony of

each witness.

19a

6. The lists set forth at paragraphs 4 and 5 herein-

above shall be hand-delivered by all parties to tl 2 offices

of opposing counsel of record on the design i date;

provided that the offices of counsel of the atervenor

Hamilton Test Systems shall, for the purpose of this

Order, be deemed the office of the City Attorney.

7. Requests for a pre-trial conference shall be made

to the Court on or before January 20, 1983.

/s/ Philip R. Ashby

District Court Judge

APPROVED:

/s/ George R. Bryan

GEORGE R. “PAT” BRYAN, III, Esq.

/s/ Bruce E. Pasternack

BRUCE E.. PASTERNACK, Esq.

/s/ Joe C. Diaz

JOE C. DIAZ, Esq.

/s/ Philip R. Higdon

PHILIP R. HIGDON, Esq.

,

20a

APPENDIX D

STATE OF NEW MEXICO

IN THE DISTRICT COURT

COUNTY OF BERNALILLO

No. CV-83-0001

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

Plaintiffs,

Vs.

ROBERT E. LUNA, Ph.D., ANN HYDE, ERIKA JONES, JONA-

THAN SAMET, Ph.D., GARY LEWIS, JAMES MONTOYA

and MIKE CREUSERE, as members of the Albuquerque/

Bernalillo County Air Quality Control Board, the CITy

OF ALBUQUERQUE, an incorporated municipality, and

the BOARD OF COUNTY COMMISSIONERS OF BERNALILLO

CouNTY, NEW MEXICO, a political subdivision of the

State of New Mexico,

Defendants.

[Filed Feb. 8, 1983]

ORDER

This matter having come on to be heard before the

Court on the merits and upon the motion to dismiss

Count VII filed by the Defendant Board of County Com-

missioners of Bernalillo County and the Plaintiffs being

present in person and represented by their attorney,

Bruce Pasternack and the Respondents being represented

by City Attorney George P. Bryan III and Assistant

City Attorney Barbara Stephenson, and County Attor-

neys Joe Diaz and Hunter Geer and the intervenor being

represented by its attorney Philip Higdon, and the Court

having heretofore ruled as to all matters set forth in

cia aia

21a

Count I and Count II having been abandoned by the

Plaintiffs, and the Court having reviewed the administra-

tive record and having heard testimony of witnesses and

having reviewed further documentary evidence submitted

at trial and having heard arguments of counsel and hav-

ing considered trial briefs submitted by counsel and hav-

ing fully considered all issues herein and having hereto-

fore filed the Court’s Findings of Fact and Conclusions

of Law herein and being fully advised in the premises

and good cause appearing therefor,

IT IS ORDERED That the Complaint for Declaratory

Judgment herein be and the same is dismissed as to

Counts II through VI, inclusive with prejudice.

IT IS FURTHER ORDERED That the said motion

to dismiss Count VII be and the same is hereby granted

and Count VII be and the same is dismissed with prej-

udice.

IT IS FURTHER ORDERED That the Albuquerque/

Bernalillo County Air Quality Control Board adopt sup-

plemental regulations regarding motor vehicle owners

subject to the IM Program whose inspections were or

are required during the months of January or Febru-

ary, 1983, and who have not heretofore had their ve-

hicles inspected, allowing delayed inspections consistent

with the continued, on-going operation of the IM Pro-

gram.

IT IS FURTHER ORDERED That all parties are to

assume their own costs herein.

; /s/ Philip R. Ashby

PHILIP R. ASHBY

District Judge, Div. VII

2Za

APPENDIX E

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 138, 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-

23a

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.

24a

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

25a

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

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

26a

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 880 (quoting NMSA 19538, Repl.Vol. 3,

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

not authorize the revenue to be used for any other pur-

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

tions. 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.

inn Abbie bt, be

it 4 a al tn

27a

II. Equal Protection.

Petitioners argue that the Program violates equal pru

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

28a

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), reqrires 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 modei 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

pmemiensen.

29a

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-

pliance. 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 onerate 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.

30a

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 Mevxico

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:

2 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 “ollars ($75,000,000) and having

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

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

3la

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

32a

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 heid 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 Schwariz 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 ine 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

33a

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.

VY. Conclusion.

We are aware of the tremendous problem the govern-

ment faces in trying to alleviate air pollution, some of

which can be attributed 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 2 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.

34a

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. 638, 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-

35a

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 concur 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,

36a

APPENDIX F

SECOND JUDICIAL DISTRICT

COUNTY OF BERNALILLO

STATE OF NEW MEXICO

No. CV-83-00001

JOHN J. CHAPMAN, et al.,

Plaintiffs,

Vs.

ROBERT E. LUNA, et al.,

Defendants,

HAMILTON TEST SYSTEMS, INC.,

Intervenor.

[Filed April 4, 1984]

MOTION FOR ATTORNEY’S FEES

Plaintiffs move the Court pursuant to Local Rule 25

and 42 U.S.C. §§ 1983 and 1988 for its Order awarding

Plaintiffs their attorney’s fees and costs herein and ap-

portioning said award as the Court deems proper among

the Defendants and Intervenor.

As grounds for this Motion, Plaintiffs would show the

Court that they have reasonably incurred substantial

attorney’s fees and costs in this case, that they were

the prevailing parties herein, that the Opinion of the

New Mexico Supreme Court in which they were the

prevailing parties was based, in part, on grounds set

“ pry eee ee a

37a

forth in the U.S. Constitution and compensable thereby

under the Civil Rights Act, §§ 1983 and 1988, and that

as a result of the foregoing they are entitled to recover

their attorney’s fees and costs from the Defendants and

Intervenor apportioned as the Court deems proper. As

further grounds for this Motion, Plaintiffs would show

the Court that they are prepared to demonstrate the

compensable nature of their attorney’s fees and costs

pursuant to the criteria recognized in 42 U.S.C. § 1988

and the cases decided pursuant thereto, and request that

the Court have an evidentiary hearing for that purpose.

BRUCE E. PASTERNACK, P.C.

By /s/ Bruce E. Pasternack

BRUCE E. PASTERNACK

Attorney for Plaintiffs

P.O. Box 985

Albuquerque, NM 87103

Telephone: (505) 842-1800

I hereby certify that a copy of the above Motion has been

mailed to all counsel of record this 4th day of April,

1984.

/s/ Bruce E. Pasternack

BRUCE E. PASTERNACK

38a

APPENDIX G

SECOND JUDICIAL DISTRICT

COUNTY OF BERNALILLO

STATE OF NEW MEXICO

No. CV-83-001

JOHN J. CHAPMAN, et al.,

Plaintiffs,

VS.

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

Defendants.

HAMILTON TEST SYSTEMS, INC.,

Intervenor.

[Filed July 2, 1984]

ORDER

This cause having been remanded to this Court by the

New Mexico Supreme Court for such proceedings herein

as may be proper, consistent and in conformity with the

Opinion and Judgment handed down by the New Mexico

Supreme Court on March 13, 1984, such Opinion and

Judgment having affirmed in part and reversed in part

the Order of this Court filed February 8, 1983, and the

New Mexico Supreme Court having mandated that this

Court enter judgment in conformity with its Opinion and

Mandate, and the Plaintiffs having filed a Motion for the

allowance of costs, including attorneys fees, and the

Court having considered such Motion and being fully

39a

advised in the premise and the Court having heretofore

filed Findings of Fact and Conclusion of Law with re-

gard to the attorneys fees,

IT IS ORDERED that Declaratory Judgment herein

be and the same is granted as to the invalidity of the

$9.25 inspection fee in Count V of Plaintiffs’ Complaint

and as to the invalidity of the $75.00 repair provisions

in Count VI of Plaintiffs’ Complaint, and the remainder

of Plaintiffs’ Complaint is dismissed with prejudice.

IT IS FURTHER ORDERED that the Plaintiffs are

awarded costs in the sum of $1,953.95.

IT IS FURTHER ORDERED that the motion for the

award of attorneys fees, as costs, is hereby denied.

/s/ Philip R. Ashby

PHILIP R. ASHBY

District Judge, Div. VII