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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 14:21:05 2019.03.13
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2019-NMCA-014
Filing Date: December 5, 2018
Docket No. A-1-CA-35908
WILFREDO ESPINOZA,
Plaintiff-Appellant,
v.
CITY OF ALBUQUERQUE,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie Huling, District Judge
Mescall Law Firm, P.C.
Thomas J. Mescall, II
Phillip Patrick Baca
Albuquerque, NM
for Appellant
Jessica M. Hernandez, City Attorney
Jeffrey B. Driggers, Assistant City Attorney
Andrew S. Coon, Assistant City Attorney
Albuquerque, NM
for Appellee
C. Brad Lane-Cates, Attorney
Brad Cates
Fairacres, NM
Institute for Justice
Robert Frommer
Arlington, VA
for Amici Curiae Arlene Harjo
OPINION
FRENCH, Judge.
{1} This case requires us to resolve whether the New Mexico Forfeiture Act (NMFA),
NMSA 1978, §§ 31-27-1 to -11 (2002, as amended through 2015), preempts the City of
Albuquerque’s (the City) civil forfeiture ordinance, Albuquerque, N.M., Rev. Ordinances
ch. 7, art.VI, §§ 7-6-1 to -7 (1992, as amended through 2014) (the Ordinance).
Concluding that it does, we reverse the district court’s judgment and order denying
Wilfredo Espinoza’s (Plaintiff) verified petition for writ of mandamus, and dismissing his
complaint for declaratory and injunctive relief.
BACKGROUND
{2} In 2016 the City seized Plaintiff’s vehicle pursuant to the Ordinance, which
provides that a motor vehicle “is hereby declared to be a nuisance and subject to
immediate seizure and forfeiture” if the vehicle is “[o]perated by a person in the
commission of a DWI offense” or “by a person whose license is suspended or revoked”
as a result of a DWI conviction or arrest. Albuquerque, N.M., Rev. Ordinance § 7-6-2.
Plaintiff sued the City seeking (1) a declaration that the Ordinance is in “violation of the
[NMFA,]” (2) a permanent injunction prohibiting the City from enforcing the Ordinance,
and (3) an order requiring the City to return Plaintiff’s vehicle to him. The City answered
and stated, among other things, that the NMFA does not apply to the Ordinance, after
which Plaintiff filed a verified petition for writ of mandamus and prohibition and motion
for judgment on the pleadings. After briefing and a hearing on the matter, the district
court entered a final judgment and order finding that the NMFA “does not preempt or
limit in any way the City of Albuquerque’s ordinance[.]” The court dismissed Plaintiff’s
complaint and denied the petition. This appeal followed.
DISCUSSION
{3} The sole issue presented by this appeal is whether the NMFA preempts the
Ordinance. Whether a municipal ordinance enacted by a home-rule municipality is
preempted by state law “requires us to construe together a constitutional amendment, the
statutes, and an ordinance, which involves a question of law reviewed de novo.” Prot. &
Advocacy Sys. v. City of Albuquerque, 2008-NMCA-149, ¶ 43, 145 N.M 156, 195 P.3d 1.
“Interpretation of constitutional clauses begins with the language of the text[,]” as does
our construction of statutes. New Mexicans for Free Enterprise (NMFE) v. City of Santa
Fe, 2006-NMCA-007, ¶ 11, 138 N.M. 785, 126 P.3d 1149. We begin with the language
of the statute, “resorting to other sources when necessary, and ultimately seeking to
determine and give effect to the intent of the [L]egislature.” Id.
The New Mexico Forfeiture Act
{4} The New Mexico Legislature enacted the NMFA in 2002 and substantially
revised it in 2015. Of particular importance are the amendments made to Section 31-27-2,
enumerating the purposes of the NMFA. Prior to 2015, the stated purposes of the NMFA
2
were to “(1) make uniform the standards and procedures for the seizure and forfeiture of
property subject to forfeiture[,] and (2) protect the constitutional rights of persons
accused of a crime and of innocent persons holding interests in property subject to
forfeiture.” Section 31-27-2(A) (2002). The Legislature expounded upon the NMFA’s
purposes in the 2015 amendments. In addition to the existing two purposes, the NMFA is
intended to “(3) deter criminal activity by reducing its economic incentives; (4) increase
the pecuniary loss from criminal activity; (5) protect against the wrongful forfeiture of
property; and (6) ensure that only criminal forfeiture is allowed in [New Mexico].”
Section 31-27-1(A)(3-6).
{5} To that end, the NMFA is a criminal forfeiture proceeding that allows property to
be forfeited by a law enforcement officer when a person is arrested for and convicted of a
criminal offense, and the state establishes by clear and convincing evidence that the
property is subject to forfeiture because it was acquired through the commission of the
criminal offense, or it was an instrumentality that the person used in the commission of
the criminal offense. See § 31-27-4(A), (B).
{6} The state may seize property prior to a person’s conviction for a criminal offense
only under certain circumstances. Section 31-27-4(D), (E). The court can issue a
preliminary order to seize property after determining that there is a “substantial
probability” that (1) the state will be able to prove the property is subject to forfeiture; (2)
the property will be destroyed, removed from the state, or otherwise made unavailable if
the court does not enter the order permitting seizure; and (3) the need to preserve the
property through the order outweighs the hardship to the owner and those known to claim
an interest in the property. Section 31-27-4(D). Property may be seized without the
preliminary order only if (1) the seizure is incident to a lawful arrest for a crime, or a
search conducted pursuant to a search warrant and the arresting officer has probable
cause to believe both that property is subject to forfeiture and that the arrested or search
person is an owner of the property; (2) the seized property is the subject of a judgment in
favor of the state; or (3) the officer has probable cause to believe both that the property is
subject to forfeiture and that the delay caused by obtaining a preliminary order would
result in the removal or destruction of the property. Section 31-27-4(E).
{7} The NMFA requires that “[w]ithin thirty days of making a seizure of property or
simultaneously upon filing a related criminal indictment, the state shall file a complaint
of ancillary forfeiture proceedings or return the property to the person from whom it was
seized.” Section 31-27-5(A). Those that claim an interest in the property must then
answer the complaint, Section 31-27-6(A), and following the trial for the criminal
offense, a forfeiture proceeding may begin. Section 31-27-6(C). During the proceeding,
the state has the burden of proving, by clear and convincing evidence, that (1) the person
whose property is alleged to be subject to forfeiture is an owner of the property; (2) the
criminal prosecution of the owner of the property resulted in a conviction; and (3) the
value of the property to be forfeited does not reasonably exceed the monetary gain
derived from the crime, the monetary loss caused by the crime, or the value of the
convicted owner’s interest in the property. Section 31-27-6(F),(G).
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{8} If the state meets its burden, the court enters a judgment of forfeiture. Section 31-
27-6(G). After the closing of the forfeiture proceeding, “the person whose property was
forfeited may petition the court to determine whether the forfeiture was
unconstitutionally excessive,” and “grossly disproportional to the seriousness of the
criminal offense for which the person was convicted[,]” requiring the court to consider a
host of factors, including the seriousness of the crime and its impact on the community,
and the sentence imposed for the commission of the crime. Section 31-26-6 (K), (L), (M).
{9} Finally, the NMFA describes the processes whereby the state acquires title to the
forfeited property, as well as the sale of the forfeited property, and the disposition of the
proceeds from the sale of the forfeited property, which is to be distributed into the state’s
general fund. Section 31-27-7.
The City’s Forfeiture Ordinance
{10} The Ordinance permits the City to subject motor vehicles to “immediate seizure
and forfeiture” if they are:
(A) Operated by a person in the commission of a DWI offense . . .
and has, on at least one prior occasion, been arrested, summonsed or
convicted for (i) an offense of driving under the influence of an
intoxicating liquor or drugs in any jurisdiction, or (ii) homicide by vehicle
or great bodily harm by vehicle . . . while under the influence of
intoxicating liquor or while under the influence of any drug and/or[;]
(B) Operated by a person whose license is suspended or revoked as
a result of conviction for driving while intoxicated or suspended or
revoked as a result of a driving while intoxicated arrest.
Albuquerque, N.M., Rev. Ordinance § 7-6-2. The Ordinance allows for seizure by court
order, or without such order if the seizure is incident to an arrest of the driver for driving
while intoxicated or driving while his or her license is suspended or revoked as a result of
an arrest for driving while intoxicated. Albuquerque, N.M., Rev. Ordinance § 7-6-5(A),
(B).
{11} Once seized, the arresting officer serves a “Notice of Forfeiture” to the person
from whom the vehicle was seized. Albuquerque, N.M., Rev. Ordinance § 7-6-5(D). The
owner may then request a hearing in front of a city hearing officer—that is “informal and
not bound by the technical rules of evidence”—to determine whether the officer had
probable cause to seize the vehicle. Albuquerque, N.M., Rev. Ordinance § 7-6-5(D)(8). If
so, “proceedings for an order for forfeiture shall be instituted promptly. Id.. Once the
property is forfeited, the police department sells the vehicle and uses the proceeds to
“carry out the purpose and intent” of the Ordinance. Albuquerque, N.M., Rev. Ordinance
§ 7-6-5(E).
4
{12} Finally, the Ordinance provides an “innocent owner defense,” which allows any
owner or co-owner of the property an opportunity to demonstrate by a preponderance of
the evidence that he or she “could not have reasonably anticipated that the vehicle could
be used in a manner constituting” a nuisance. Albuquerque, N.M., Rev. Ordinance § 7-6-
7(A) (internal quotation marks omitted). If the owner makes this prima facie showing,
“the burden is upon the city to prove by a preponderance of the evidence that the owner
could have reasonably anticipated that the vehicle could be used in the manner
constituting the nuisance.” Id.
Preemption
{13} Plaintiff argues that several provisions of the Ordinance are inconsistent with the
NMFA, and the NMFA thereby preempts the Ordinance. The City relies upon Section
31-27-2(B)(1) of the NMFA and argues that the Ordinance does not conflict with the
NMFA because “the Legislature allowed municipalities the decision to opt-in to the
[NMFA.]” Section 31-27-2(B)(1) states: “The [NMFA] applies to seizures, forfeitures
and dispositions of property subject to forfeiture pursuant to laws that specifically apply
the [NMFA.]” Based upon this statutory language, and the lack of language in the
Ordinance expressly providing that the NMFA applies to the Ordinance, the City
maintains that the NMFA cannot preempt the Ordinance. Indeed, the City maintains that
the “other provisions of the [NMFA], are irrelevant since the [NMFA] does not apply to
the Ordinance.”
{14} We agree with Plaintiff, and therefore we begin with the law of preemption in
New Mexico. We then explain why the City’s argument is incorrect. “A municipality . . .
may exercise all legislative powers and perform all functions not expressly denied by
general law or charter.” N.M. Const. art. X, § 6(D). The City “no longer has to look to the
[L]egislature 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.” NMFE, 2006-NMCA-
007, ¶ 15 (internal quotation marks and citation omitted); see Titus v. City of
Albuquerque, 2011-NMCA-038, ¶ 15, 149 N.M. 556, 252 P.3d 780 (defining
“Albuquerque is a home[-]rule charter municipality”). An enactment by the Legislature
preempts a municipality’s ordinance if it “expressly denies municipalities the authority to
legislate similar matters[.]” Casuse v. City of Gallup, 1987-NMSC-112, ¶ 3, 106 N.M.
571, 746 P.2d 1103. Determination of express denials of a home-rule municipality’s
power or authority involves a two-step process. “In the first step, a court asks whether a
state law is a general law,” and “[i]n the second step, we ask whether state law expressly
denies the City’s power to enact the [o]rdinance in question.” Prot. & Advocacy Sys.,
2008-NMCA-149, ¶¶ 46-47 (internal quotation marks and citation omitted).
The NMFA Is a General Law
{15} A general law is “one that [a]ffects the community at large, as opposed to a local
law that deals with a particular locality.” Casuse, 1987-NMSC-112, ¶ 3. A general law
“applies generally throughout the state, relates to a matter of statewide concern, and
impacts inhabitants across the entire state.” Smith v. City of Santa Fe, 2006-NMCA-048,
5
¶ 9, 139 N.M. 410, 133 P.3d 866; see Apodaca v. Wilson, 1974-NMSC-071, ¶ 16, 86
N.M. 516, 525 P.2d 876 (emphasizing that in order “to control or limit municipal
enactments, the general law must be of general concern to the people of the state”).
{16} An example of a general law is a statute governing utility rate-making, which is a
matter of statewide rather than local concern “because a proposed service rate for one
municipality can affect rates to other municipalities in the state.” City of Albuquerque v.
N.M. Pub. Serv. Comm’n (Public Service Commission), 1993-NMSC-021, ¶ 25, 115
N.M. 521, 854 P.2d 348. The Minimum Wage Act is also a general law because “an
hourly minimum wage is of obvious concern to workers across the state and it applies to
all workers in the state.” NMFE, 2006-NMCA-007, ¶ 18. In contrast, state provisions
setting the allowable number of municipal commissioners is not a matter of general
concern because the number of commissioners a municipality has “is predominately, if
not entirely, of interest to the citizens of the” municipality for which the commissioners
serve. State ex rel. Haynes v. Bonem, 1992-NMSC-062, ¶ 21, 114 N.M. 627, 845 P.2d
150. Similarly, a statute regulating government employees’ First Amendment activities is
not a matter of general concern because it touches upon the regulation of only municipal
employees’ activities in order to further the efficiency of governmental operations. Kane
v. City of Albuquerque, 2015-NMSC-027, ¶ 52, 358 P.3d 249 (emphasis added).
{17} Like the statutes at issue in Public Service Commission and NMFE, the NMFA
applies to and thereby affects all New Mexicans. See § 31-27-2(A)(6) (explaining that the
NMFA is intended to ensure that “only criminal forfeiture is allowed in this state,” i.e.
statewide). The Legislature intended that the extinguishment of civil forfeiture and the
existence of specific procedures for only criminal forfeiture proceedings apply across the
state. See § 31-27-2(A)(1) (explaining that one purpose of the NMFA is to “make uniform
the standards and procedures for the seizure and forfeiture of property” (emphasis
added)). Both its protective and punitive aspects are intended to apply to all persons in
New Mexico. See Section 31-27-2(B)(1) (making the NMFA applicable to all “seizures,
forfeitures, and dispositions of property subject to forfeiture”); § 31-27-2(A)(2)
(recognizing that the NMFA is intended to protect the rights of persons whose property is
subject to forfeiture and of innocent owners holding interests in property subject to
forfeiture, not only to target and thereby deter the conduct of those engaged in criminal
activity). We, therefore, conclude that the NMFA is a general law because it applies
generally throughout the state, relates to a matter of statewide concern, and impacts
everyone across the entire state.
The NMFA Expressly Denies Home-Rule Municipalities Authority to Enforce Civil
Asset Forfeiture Proceedings
{18} Having concluded that the NMFA is a general law, we next consider whether it
“expressly denies” the City the authority to maintain and enforce the Ordinance. Kane,
2015-NMSC-027, ¶ 49. While earlier cases construing the phrase “not expressly denied,”
N.M. Const. art. X, § 6(D), required the statute to contain “some express statement of the
authority or power denied[,]” Apodaca, 1974-NMSC-071, ¶ 16 (emphasis added), our
Supreme Court more recently has rejected the argument that Article X, Section 6(D)
6
“allows a municipality to disregard an express law of the Legislature unless the law
specifically states ‘and no municipality may do otherwise.’ ” Casuse, 1987-NMSC-112, ¶
6. Rather, any general law “that clearly intends to preempt a governmental area should be
sufficient without necessarily stating that affected municipalities must comply and cannot
operate to the contrary.”Id.. “[A] negation of the power in haec verba is not necessary;
words or expressions which are tantamount or equivalent to such a negation are equally
effective.” Haynes, 1992-NMSC-062, ¶ 22. Specifically, we are to look to the “explicitly
articulated purposes” of the general law, if enumerated, and in light of the purposes of the
general law, determine whether the local law would circumvent and thereby frustrate
Legislative intent in enacting the statute. ACLU v. City of Albuquerque, 1999-NMSC-
044, ¶ 13, 128 N.M. 315, 992 P.2d 866; see City of Albuquerque v. N.M. Pub. Regulation
Comm’n, 2003-NMSC-028, ¶ 7, 134 N.M. 472, 79 P.3d 297 (“Local governments also
cannot use . . . their home[-]rule power to frustrate or violate established public policy.”).
The question, then, is one of legislative intent. See NMFE, 2006-NMCA-007, ¶ 19
(describing the analysis as an inquiry into (1) whether the general law evinces an intent to
negate municipal power, (2) whether there is a clear intent to preempt the governmental
area from municipal policymaking, and (3) whether municipal authority to act would be
“so inconsistent” with the general law that the general law “is the equivalent of an
express denial”); see also Prot. & Advocacy Sys., 2008-NMCA-149, ¶ 61 (“When
considering preemption, we must, above all, follow our Legislature’s intent[.]”).
{19} We begin by examining the clearest expression of the Legislature’s intent when
enacting a statute: the expressly stated purposes of the NMFA. See Sims v. Sims, 1996-
NMSC-078, ¶ 17, 122 N.M. 618, 930 P.2d 153 (explaining that the plain meaning rule
requires a court to give effect to the statute’s language and refrain from further
interpretation when the language is clear and unambiguous); see also ACLU, 1999-
NMSC-044, ¶ 11 (holding that the Children’s Code preempted the City’s curfew
ordinance, citing first to and relying heavily upon the Legislature’s stated purpose within
the Children’s Code). The Legislature specifically enumerated the purposes of the
NMFA. See § 31-27-2(A). Importantly, the Legislature intended to “ensure that only
criminal forfeiture is allowed in this state.” Section 31-27-2(A)(6) (emphasis added).
Additionally, the NMFA is meant to “make uniform the standards and procedures for the
seizure and forfeiture of property subject to forfeiture.” Section 31-27-2(A)(1) (emphasis
added). While the language of the NMFA does not prohibit municipalities from enacting
and enforcing criminal forfeiture proceedings, it restricts forfeiture to criminal
proceedings, and imposes specific requirements on any criminal forfeiture proceedings
that must comport with the provisions of the NMFA. See id. The Ordinance, however,
allows the City to accomplish precisely what the Legislature intended the NMFA to
eliminate: civil forfeiture. City of Albuquerque ex rel. Albuquerque Police Dep’t v. One
(1) 1984 White Chevy, 2002-NMSC-014, ¶¶ 1, 4, 132 N.M. 187, 46 P.3d 94 (describing
the ordinance as a civil forfeiture proceeding).
{20} In several specific ways, the procedures of the Ordinance for seizing and
forfeiting a person’s property are at odds with the procedures set forth in the NMFA.
First, the NMFA requires the person to be convicted of the criminal offense to which the
property is tied before that property becomes potentially subject to forfeiture. See § 31-
7
27-4(A) (providing that a person’s property is subject to forfeiture if the person “was
arrested for an offense to which forfeiture applies[,]” and “the person is convicted by a
criminal court of the offense”); § 31-27-5(A) (requiring that the state, within thirty days
of seizing the property or filing a related criminal indictment, file a complaint of ancillary
forfeiture proceedings or return the property to the person from whom it was seized). The
Ordinance, on the other hand, allows for forfeiture of property upon a person’s arrest—
before conviction—for a criminal offense. See Albuquerque, N.M., Rev. Ordinance §§ 7-
6-2, -5(B) (providing that a vehicle is subject to “immediate seizure and forfeiture” if
“seizure is incident to an arrest of the driver”). Nothing in the Ordinance requires that the
person be convicted of DWI or driving on a revoked or suspended license as a result of a
DWI before the officer seizes and subjects the vehicle to forfeiture, or that criminal
proceedings occur contemporaneous with the City’s effort to forfeit the vehicle.
{21} Second, the NMFA carefully sets out the procedure for replevin hearings—
initiatory proceedings at which an individual who claims an interest in the property
seized can seek its return prior to the resolution of the related criminal matter—see § 31-
27-4.1, whereas the Ordinance specifically states that seized vehicles “shall not be subject
to replevin,” but are “deemed to be in the custody of the [p]olice [d]epartment.”
Albuquerque, N.M., Rev. Ordinance § 7-6-5(C).
{22} Third, the NMFA places the burden on the state to prove that the property owner
“had actual knowledge that the property was subject to forfeiture” because of its use in
the course of criminal activity. Section 31-27-7.1(F)(1). This is in stark contrast to the
Ordinance, which places the burden of proof on the owner of the property to prove that
he or she “could not have reasonably anticipated that the vehicle could be used in a
manner constituting” a public nuisance. Albuquerque, N.M., Rev. Ordinance § 7-6-7(A).1
Beyond that, the NMFA calls for a different burden of proof than the Ordinance. See §
31-27-7.1(F)(1) (proving by clear and convincing evidence); Albuquerque, N.M., Rev.
Ordinance § 7-6-7(A) (demonstrating preponderance of evidence).
{23} Finally, as another example, the NMFA provides the person whose property is
subject to forfeiture an opportunity to contest the conclusion of the proceeding. At the
close of a forfeiture proceeding conducted in accordance with the procedures of the
NMFA, the person whose property was forfeited may petition the court to determine
whether the forfeiture was “unconstitutionally excessive” and “grossly disproportional to
the seriousness of the criminal offense for which the person was convicted” in light of
several factors, including the impact of the crime on the community and the sentence
imposed for the commission of the crime. Section 31-27-6(K), (L), (M). Under the
Ordinance, there exists no means for the person to contest the conclusions drawn at the
close of the probable cause hearing, nor does the Ordinance provide the presiding official
any discretion to consider whether forfeiture is a proportionate response to the factual
1
The provision of the Ordinance requiring owners of seized property to prove
their innocence was recently found to be an unconstitutional procedural due process
violation. See Harjo v. City of Albuquerque, 307 F. Supp. 3d 1163, 1210 (D.N.M. 2018),
modified on reconsideration by 326 F. Supp. 3d 1145 (D.N.M. 2018).
8
nuances of the circumstances presented, critically, the seriousness of the crime. Rather, at
the close of the “informal” hearing where it is determined that the seizure was supported
by probable cause, “proceedings for an order for forfeiture shall be instituted promptly.”
Albuquerque, N.M., Rev. Ordinance § 7-6-5(D).
{24} The Ordinance and the NMFA are functionally at odds with one another. The
NMFA constrains the circumstances under which a person’s property may be subject to
permanent forfeiture, for example, by requiring conviction (not merely arrest) prior to the
initiation of forfeiture proceedings, by allowing persons to seek replevin, by shifting the
burden of proof to the state, by heightening the burden of proof before the court can
conclude that the property is subject to forfeiture, and by allowing the person to petition
the court to determine whether a finding of forfeiture was unconstitutionally excessive.
The Ordinance, however, simply—and far more strictly—deems the property associated
with the named conduct forfeitable without further consideration. See Albuquerque,
N.M., Rev. Ordinance § 7-6-2 (providing that a motor vehicle operated under the
described circumstances “is hereby declared to be a nuisance and subject to immediate
seizure and forfeiture”). Such a per se approach to seizing and forfeiting property owned
by individuals is wholly contrary to the language and spirit of the NMFA. Thus, because
the Legislature intended to eliminate civil forfeiture and the Ordinance allows for it, and
because the procedures set forth in the Ordinance are different from and contrary to the
procedures outlined in the NMFA, we conclude that the Ordinance is so inconsistent with
the terms of the NMFA that the NMFA is the equivalent of an express denial of the
City’s authority to enforce the Ordinance.
{25} We find further support for our analysis of the NMFA’s purposes and provisions
in our case law. In ACLU, 1999-NMSC-044, ¶¶ 13,15, for example, the Delinquency Act
was found to have “comprehensively” and “exhaustively” addressed the conduct and
behavior of children that could be described as criminal, thus a local ordinance providing
criminal penalties for curfew violations conflicted with and was preempted by the state
law. By contrast, NMFE, 2006-NMCA-007, ¶ 20, held that the Minimum Wage Act did
not preempt a city ordinance setting the minimum wage higher than that in the statute
because “unlike the situation in ACLU, [the] state law does not establish any type of
comprehensive wage-setting program or scheme and the Minimum Wage Act does not
exhaustively address the subject of minimum wages.”
{26} Like the general law at issue in ACLU, the NMFA comprehensively addresses
asset forfeiture by expressly limiting the circumstances under which such proceedings
may occur—namely, only in the criminal context—and by detailing each step of the
seizure and forfeiture process. It sets forth specific procedures for each step of the
process, including (1) when an order to seize potentially forfeitable property may be
issued, Section 31-27-4; (2) what documentation of receipt of property the property
owner must receive following seizure, Section 31-27-4.1(A); (3) under what
circumstances a party may move the court to issue a writ of replevin and what responsive
pleadings are permitted, Section 31-27-4.1(B),(C); (4) the timing and form of the
complaint for the state to initiate a permanent forfeiture of property, as well as the
requirements for service of process, Section 31-27-5; (5) the mechanisms available for
9
persons who claim an interest in seized and forfeited property and the rules of procedure
and burdens of proof to be applied in the forfeiture proceeding along with the option to
appeal the district court’s decision following the proceeding, Section 31-27-6; and (6)
the disposition of forfeited property and depositing of proceeds from the sale of forfeited
property into the state’s general fund, Section 31-27-7. As in ACLU, we conclude that
the Legislature, through these extensive, detailed, and comprehensive provisions has
“exhaustively addresse[d]” the existence and manner of enacting and enforcing asset
forfeiture proceedings. ACLU, 1999-NMSC-049, ¶ 15.
The NMFA Does Not Operate as an “Opt-In” Statute as the City Argues
{27} Finally, we address the City’s argument. The City relies upon Section 31-27-
2(B)(1) of the NMFA and argues that the Ordinance does not conflict with and therefore
cannot be preempted by the NMFA because “the Legislature allowed municipalities the
decision to opt-in to the [NMFA].” Section 31-27-2(B)(1) states: The NMFA “applies to
seizures, forfeitures and dispositions of property subject to forfeiture pursuant to laws
that specifically apply the [NMFA.]” Because the Ordinance does not contain language
expressly providing that the NMFA applies, the City maintains that the NMFA cannot
preempt the Ordinance.
{28} We disagree, based first upon the fact that the City’s interpretation of Section 31-
27-2(B)(1) subverts the NMFA’s clearly stated purpose, that is, to ensure that only
criminal forfeiture exists in New Mexico. Under the City’s interpretation, a municipality
wishing to enact a civil forfeiture law could entirely avoid the NMFA and the stated
rationale that underpins it, along with all of its requirements concerning forfeiture
proceedings by simply not mentioning the NMFA in a given ordinance and in so doing,
allow non-criminal asset forfeiture—such as that embodied by the City’s Ordinance—to
continue from municipality to municipality.
{29} Second, whether the NMFA only applies to statutes “that specifically apply the
[NMFA]”, as the City interprets Section 31-27-2(B)(1), is an issue separate and distinct
from preemption. We view the related language to mean that the Legislature may, in
another statute, provide that the NMFA applies to the statute in order to incorporate its
procedures and penalties into the substance of the statute. See, e.g., NMSA 1978, § 60-
7A-5(C) (2002) (penalizing the unlawful manufacture or sale of alcoholic beverages or
any money “that is the fruit or instrumentality” of such by subjecting it to forfeiture and
providing that “the provisions of the [NMFA] apply to the seizure, forfeiture[,] and
disposal of such property); NMSA 1978, § 17-2-20.1(A), (C) (2002) (providing that
“[t]he provisions of the [NMFA] apply to the seizure, forfeiture and disposal of property”
when “used as instrumentalities in the commission of” possessing, taking, or attempting
to take big game during closed season). The latter concept—preemption—is an issue that
arises any time two governing bodies attempt to regulate the same subject matter. The
inferior of the two governing bodies, the local government, cannot exempt itself from the
application of the sovereign’s laws. See Casuse 1987-NMSC-112, ¶ 6 (“It is commonly
recognized that a sovereign and its subdivision may tax the same activity without causing
an inconsistency in the law. However, when two statutes that are governmental or
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regulatory in nature conflict, the law of the sovereign controls.”). Where a municipality’s
ordinance interferes with a general law, the general law, i.e. the law of the sovereign,
preempts that of its subdivision, regardless of whether the language of the municipality’s
ordinance acknowledges the existence of the laws of the sovereign.
{30} Finally, if the City is correct that the statute only applies to cities that include in
their ordinances such similar words as “and the NMFA applies,” courts would be
precluded from engaging in a preemption analysis at all for any statute with a provision
similar to Section 31-27-2(B)(1). As previously described, the analysis for determining
whether a law is a general law requires us to examine the effect of a legislative
enactment—whether it affects all of the inhabitants of the state and is therefore of
statewide concern, or whether it affects only the inhabitants of the municipality and is
therefore of only local concern. Haynes, 1992-NMSC-062, ¶ 19. Under the City’s view, it
is the local government that determines which of the sovereign’s laws are general. If true,
a municipality could simply assert that the law is not of statewide concern because it does
not apply to all municipalities by the very terms of the municipality’s own ordinances.
Where local governments are able to decide which statutes of the sovereign apply to them
based upon the wishes of local officials and the language of a local ordinance, local
governments can evade a determination that an otherwise restrictive statute is a general
law. We find it quite unlikely that the Legislature would empower an inferior
governmental body with the capacity to decide which statutes are general laws and which
are not. The City’s argument turns the interaction between sovereigns and the
subdivisions that exist within them completely on its head.
{31} We conclude that the NMFA denies the City’s authority to seize and forfeit
property under the Ordinance because the enforcement of the Ordinance frustrates, and,
in fact, completely contradicts the Legislature’s intent in amending the NMFA. Thus, the
NMFA preempts the Ordinance in its entirety.
CONCLUSION
{32} We conclude that the NMFA preempts the Ordinance and reverse the judgment
and order of the district court.
{33} IT IS SO ORDERED.
________________________________
STEPHEN G. FRENCH, Judge
WE CONCUR:
______________________________________
LINDA M. VANZI, Chief Judge
______________________________________
HENRY M. BOHNHOFF, Judge
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