Conejo v. City of Albuquerque

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 DANIEL CONEJO, AMME HOGAN, 3 SONNY LEEPER, DAVID QUINTANA, 4 JAMES REICH, JOHN RUSSO, KEVIN 5 SMITH, MARK WEINSTEIN, and a Class 6 of Others Similarly Situated, 7 Plaintiffs-Appellants, 8 v. No. 29,787 9 CITY OF ALBUQUERQUE, MARTIN P. 10 CHAVEZ, Mayor, and REDFLEX 11 TRAFFIC SYSTEMS, INC., 12 Defendants-Appellees, 13 and 14 M. CHRISTINE MONTOYA, ROLAND M. 15 CHEEKU, BETTY DELGADO, SYLVIA 16 PEREZ, SUSAN L. ABRUMS, and all Others 17 Similarly Situated, 18 Intervenors-Appellees. 19 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 20 Richard J. Knowles, District Judge 21 Paul Livingston, 22 Placitas, NM 1 for Appellants 2 Robert J. Perry, City Attorney 3 Michael I. Garcia, Assistant City Attorney 4 Albuquerque, NM 5 for Appellees City of Albuquerque 6 Keleher & McLeod, P.A. 7 Charles A. Pharris 8 Thomas C. Bird 9 Ben Feuchter 10 Albuquerque, NM 11 for Appellee Redflex Traffic Systems, Inc. 12 The Branch Law Firm 13 Turner W. Branch 14 Frank V. Balderrama 15 Paul D. Dominguez 16 Albuquerque, NM 17 for Intervenors-Appellees 18 MEMORANDUM OPINION 19 GARCIA, Judge. 20 {1} Plaintiffs appeal the district court’s order to dismiss their class action complaint 21 challenging the City of Albuquerque’s “Safe Traffic Operations Program” (STOP) 22 Ordinance. While this appeal was pending, this Court issued opinions in Titus v. City 23 of Albuquerque, 2011-NMCA-038 , 149 N.M. 556 , 252 P.3d 780 , and Montoya v. City [2] 1 of Albuquerque, No. 29,838, slip op. (N.M. Ct. App. May 18, 2011), in which the 2 plaintiffs raised similar challenges to the legality and constitutionality of the STOP 3 Ordinance. Both Opinions upheld the validity of the STOP Ordinance in favor of the 4 City of Albuquerque. Titus, 2011-NMCA-038, ¶ 1 ; Montoya, No. 29, 838, slip op. at 5 2. The New Mexico Supreme Court granted certiorari and reviewed both cases. Titus 6 v. City of Albuquerque, 2011-NMCERT-005 , 150 N.M. 667 , 265 P.3d 718 ; Montoya 7 v. City of Albuquerque, 2011-NMCERT-008 , 268 P.3d 514 . Upon this Court’s own 8 motion, we issued an order to hold this case in abeyance pending the decisions by the 9 Supreme Court in Titus and Montoya. The Supreme Court has now quashed certiorari 10 in both cases. Titus, 2013-NMCERT-003 , ___ P.3d ___ (No. 32,941, Mar. 22, 2013), 11 and Montoya, 2013-NMCERT-003 , ___ P.3d ___ (No. 33,070, Mar. 22, 2013). 12 {2} The district court dismissed the present case before it reached the merits, 13 concluding that Plaintiffs were already represented as part of the certified class in 14 Montoya. On appeal, Plaintiffs challenge the procedure used by the district court and 15 do not argue that their interests are somehow different than the class in the Montoya 16 case. We find nothing in the record that distinguishes the merits of the present case 17 from those decided by this Court in Montoya and Titus. The merits of Plaintiffs’ 18 arguments were either directly considered in Titus and Montoya or are governed by 19 the issues raised and analysis in those cases. Nothing further remains to be decided [3] 1 on the merits and any procedural error by the district court would now be moot. See 2 Glaser v. LeBus, 2012-NMSC-012, ¶ 12 , 276 P.3d 959 (affirming the district court if 3 it is right for any reason); Maralex Res., Inc. v. Gilbreath, 2003-NMSC-023, ¶ 13 , 134 4 N.M. 308 , 76 P.3d 626 (“[A]n appellate court will affirm the district court if it is right 5 for any reason and if affirmance is not unfair to the appellant.” (internal quotation 6 marks and citation omitted)). We therefore affirm the district court’s dismissal based 7 on our holdings in Titus, 2011-NMCA-038 , ¶ 1 and Montoya, No. 29, 838, slip op. at 8 2. 9 {3} IT IS SO ORDERED. 10 ___________________________________ 11 TIMOTHY L. GARCIA, Judge 12 WE CONCUR: 13 ____________________________ 14 JAMES J. WECHSLER, Judge 15 ____________________________ 16 JONATHAN B. SUTIN, Judge