 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number:

 3 Filing Date: January 10, 2019

 4 No. A-1-CA-35944

 5 CITY OF SANTA FE ex rel.
 6 SANTA FE POLICE DEPARTMENT,

 7         Petitioner-Appellant,

 8 v.

 9 ONE (1) 1989 BLACK SAAB SEDAN
10 V.I.N. Y53AT76LXK7020541
11 NEW MEXICO LICENSE NO. 312TNC,

12         Respondent,

13 and

14 ROBERT H. BOULANGER,

15         Claimant-Appellee.

16 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
17 Francis J. Mathew, District Judge

18   Kelley Brennan, City Attorney
19   R. Alfred Walker, Assistant City Attorney
20   Michael Prinz, Assistant City Attorney
21   Santa Fe, NM

22 for Appellant

23 Robert H. Boulanger
24 New Orleans, LA

25 Pro Se Appellee
 1                                       OPINION

 2 VARGAS, Judge.

 3   {1}   The City of Santa Fe (the City) appeals the district court’s order directing the

 4 return, upon stated conditions, of Robert Boulanger’s (Claimant) car, which was

 5 seized pursuant to the City’s forfeiture ordinance, Santa Fe, N.M., Code § 24-9

 6 SFCC 1987 (1993, amended 2012) (Santa Fe Ordinance). This appeal requires us

 7 to determine whether the New Mexico Forfeiture Act (NMFA), NMSA 1978, §§

 8 31-27-1 to -11 (2002, as amended through 2015), preempts the Santa Fe

 9 Ordinance. Consistent with this Court’s recent holding in Espinoza v. City of

10 Albuquerque, ___-NMCA-___, ___ P.3d ___ (No. A-1-CA-35908, Dec. 5, 2018),

11 we conclude that it does and therefore vacate the district court’s judgment and

12 remand the matter to the district court with instructions to dismiss the City’s

13 forfeiture petition and unconditionally order the return of Claimant’s vehicle.

14 BACKGROUND

15   {2}   On April 22, 2016, law enforcement officials stopped Claimant for a traffic

16 violation. The Santa Fe Police Department took custody of the car pursuant to the

17 Santa Fe Ordinance, after determining that at the time Claimant was driving the

18 car, his driver’s license was revoked or denied as a result of a prior DWI arrest or

19 conviction. Claimant sought a hearing on the forfeiture matter, and following a

20 hearing on the merits, the district court ordered the return of Claimant’s vehicle
 1 pursuant to the “safe harbor” provision of the Santa Fe Ordinance. See Santa Fe,

 2 N.M., Code § 24-9.6. The City appealed, and in assigning the case to the general

 3 calendar, this Court sought briefing from the parties regarding “the preemptive

 4 effect, if any, of the amendment to the [NMFA], to prohibit civil forfeiture.”

 5 DISCUSSION

 6 A.      The NMFA Preempts the Ordinance

 7   {3}   The City recognizes in its brief that the preemption issue in this case is the

 8 same as the one addressed by this Court in Espinoza, ___-NMCA-___, ¶ 3, ___

 9 P.3d ___. In Espinoza, we characterized the NMFA as a general law that “applies

10 generally throughout the state, relates to a matter of statewide concern, and impacts

11 everyone across the entire state.” Id. ¶ 17. We then compared the ordinance at issue

12 therein, the Albuquerque, N.M. Rev. Ordinance ch. 7, art VI, § 7-6-1 to -7 (1992,

13 as amended through 2017) (Albuquerque Ordinance), which purports to allow for

14 civil forfeiture, with the NMFA, which was created to “make uniform the standards

15 and procedures for the seizure and forfeiture of property subject to forfeiture” and

16 “ensure that only criminal forfeiture is allowed in this state.” Id. ¶ 19 (quoting

17 Section 31-27-2(A)(1), (6)) (emphasis added). We concluded that the Albuquerque

18 Ordinance circumvented the NMFA, since the ordinance by its terms allowed the

19 municipality “to accomplish precisely what the Legislature intended the NMFA to

20 eliminate: civil forfeiture.” Id. In fact, after highlighting the substantive and

                                              2
 1 procedural differences between the NMFA and the Albuquerque Ordinance—

 2 conviction as a prerequisite to forfeiture, the availability of replevin hearings,

 3 allocation of the burden of proof, and the ability to contest the outcome of the

 4 proceedings—we concluded that the Albuquerque Ordinance was “so inconsistent

 5 with the terms of the NMFA that the NMFA is the equivalent of an express denial

 6 of the [municipality’s] authority to enforce the [Albuquerque] Ordinance.” Id. ¶ 24.

 7 At the heart of our conclusion in Espinoza was the fact that, while the NMFA

 8 “constrains the circumstances under which a person’s property may be subject to

 9 permanent forfeiture,” the Albuquerque Ordinance “simply—and far more

10 strictly—deems the property associated with the named conduct forfeitable without

11 further consideration.” Id. We therefore held that the NMFA preempted the

12 Albuquerque Ordinance “because the enforcement of the [Albuquerque] Ordinance

13 frustrates, and, in fact, completely contradicts the Legislature’s intent in amending

14 the NMFA.” Id. ¶ 31; see ACLU v. City of Albuquerque, 1999-NMSC-044, ¶ 13,

15 128 N.M. 315, 992 P.2d 866 (analyzing the preemption issue using the explicitly

16 articulated purposes of the general law to determine whether the local law

17 circumvents and thereby frustrates legislative intent in enacting the statute).

18   {4}   Our task in this case, in light of Espinoza, is to determine whether the Santa

19 Fe Ordinance suffers from the same fatal flaws as the Albuquerque Ordinance at

20 issue in Espinoza, rendering it unenforceable, or whether it is sufficiently

                                              3
 1 distinguishable to render Espinoza’s reasoning inapplicable. Given the substantial

 2 similarities between the two ordinances, as well as the City’s acknowledgement

 3 that the Santa Fe Ordinance at issue here is based on the Albuquerque Ordinance

 4 that was subject to preemption in Espinoza, we conclude Espinoza applies here and

 5 the Santa Fe Ordinance is preempted by the NMFA.

 6   {5}   The Santa Fe Ordinance, like the Albuquerque Ordinance, is framed as a

 7 motor vehicle nuisance abatement tool aimed at reducing the risk of bodily injury,

 8 loss of life, and property damage generally associated with the use of motor

 9 vehicles in DWI. See Santa Fe, N.M., Code § 24-9.2; Albuquerque, N.M. Rev.

10 Ordinance ch. 7, art VI, § 7-6-1 (recognizing that DWI presents a potential risk of

11 “serious bodily injury and loss of life and property”). Both ordinances define as

12 public nuisances the operation of motor vehicles by a person in the commission of

13 a DWI offense or by a person whose license has been suspended or revoked as a

14 result of a DWI arrest. See Santa Fe, N.M., Code § 24-9.3 (identifying motor

15 vehicle as public nuisance if “[o]perated by a person who is arrested for a DWI

16 offense” or “[o]perated by a person whose license is currently revoked or denied as

17 a result of a DWI arrest or conviction”); Albuquerque, N.M. Rev. Ordinance ch. 7,

18 art VI, § 7-6-2 (identifying motor vehicle as nuisance if “[o]perated by a person in

19 the commission of a DWI offense” or if “[o]perated by a person whose license is

20 suspended or revoked as a result of conviction for driving while intoxicated”). Like

                                            4
 1 the Albuquerque Ordinance, the Santa Fe Ordinance allows for the seizure of the

 2 vehicle of a person who is arrested—but not convicted—of DWI, provides that the

 3 vehicle shall not be subject to replevin, and requires that the owner of the property

 4 carry the burden of proof—a burden which is distinct from that stated in the

 5 NMFA. See Santa Fe, N.M. Code § 24-9.5(B), (C), (E); § 24-9.7(A); Albuquerque,

 6 N.M. Rev. Ordinance ch. 7, art VI, § 7-6-5(B), (C), (D); Albuquerque, N.M. Rev.

 7 Ordinance ch. 7, art VI, § 7-6-7; see also Espinoza, ___-NMCA-___, ¶¶ 20-23. In

 8 all, the Santa Fe Ordinance is marred by the same features that the Espinoza court

 9 pointed as a basis for preemption in analyzing the Albuquerque Ordinance.

10   {6}   As was the case in Espinoza, the City argues that the distinction between

11 criminal and civil forfeiture renders the purpose of the NMFA different from that

12 of the Santa Fe Ordinance and that the application of the NMFA is limited, based

13 on the absence of an explicit provision incorporating the NMFA into the Santa Fe

14 Ordinance. We flatly rejected both arguments in Espinoza. The municipality in

15 Espinoza, like the City here, argued that because the Albuquerque Ordinance did

16 not contain “language expressly providing that the NMFA applies,” the NMFA

17 could not preempt the Albuquerque Ordinance. Espinoza, ___-NMCA-___, ¶ 27.

18 As we noted in Espinoza, such an approach “subverts the NMFA’s clearly stated

19 purpose” of ensuring that only criminal forfeiture exists in New Mexico; “[t]he




                                             5
 1 inferior of two governing bodies . . . cannot exempt itself from the application of

 2 the sovereign’s laws.” Id. ¶¶ 28-29.

 3   {7}   In light of the substantial similarities between the two forfeiture ordinances,

 4 and the considerable overlap between the legal questions and arguments at issue in

 5 Espinoza and in this case, we find no reasoned basis to depart from the analysis

 6 and conclusion of Espinoza. We therefore hold that the NMFA denies the City

 7 authority to seize and forfeit property under the Santa Fe Ordinance because the

 8 enforcement of the Santa Fe Ordinance not only frustrates, but contradicts, the

 9 Legislature’s intent in enacting the NMFA. Given this conclusion, we have no

10 occasion to address the remaining issue raised by the City on appeal.

11 CONCLUSION

12   {8}   The judgment of the district court applying the provisions of the Santa Fe

13 Ordinance is vacated and the matter is remanded to the district court with

14 instructions to dismiss the City’s petition and order the unconditional return of

15 Claimant’s vehicle.

16   {9}   IT IS SO ORDERED.



17                                                ______________________________
18                                                JULIE J. VARGAS, Judge




                                              6
1 WE CONCUR:


2 _______________________________________
3 J. MILES HANISEE, Judge


4 _______________________________________
5 DANIEL J. GALLEGOS, Judge Pro Tempore




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