Conejo v. City of Albuquerque ( 2013 )

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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
4