# Opposition Brief — Chapman v. Luna > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0695%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 474 U.S. 947 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0695%3A2. Public record. Not legal advice.