Opinion
No. 29,787
05-01-2013
DANIEL CONEJO, AMME HOGAN, SONNY LEEPER, DAVID QUINTANA, JAMES REICH, JOHN RUSSO, KEVIN SMITH, MARK WEINSTEIN, and a Class of Others Similarly Situated, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, MARTIN P. CHAVEZ, Mayor, and REDFLEX TRAFFIC SYSTEMS, INC., Defendants-Appellees, and M. CHRISTINE MONTOYA, ROLAND M. CHEEKU, BETTY DELGADO, SYLVIA PEREZ, SUSAN L. ABRUMS, and all Others Similarly Situated, Intervenors-Appellees.
Paul Livingston, Placitas, NM for Appellants Robert J. Perry, City Attorney Michael I. Garcia, Assistant City Attorney Albuquerque, NM for Appellees City of Albuquerque Keleher & McLeod, P.A. Charles A. Pharris Thomas C. Bird Ben Feuchter Albuquerque, NM for Appellee Redflex Traffic Systems, Inc. The Branch Law Firm Turner W. Branch Frank V. Balderrama Paul D. Dominguez Albuquerque, NM for Intervenors-Appellees
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Richard J. Knowles, District Judge
Paul Livingston,
Placitas, NM
for Appellants Robert J. Perry, City Attorney
Michael I. Garcia, Assistant City Attorney
Albuquerque, NM
for Appellees City of Albuquerque Keleher & McLeod, P.A.
Charles A. Pharris
Thomas C. Bird
Ben Feuchter
Albuquerque, NM
for Appellee Redflex Traffic Systems, Inc. The Branch Law Firm
Turner W. Branch
Frank V. Balderrama
Paul D. Dominguez
Albuquerque, NM
for Intervenors-Appellees
MEMORANDUM OPINION
GARCIA, Judge.
{1} Plaintiffs appeal the district court's order to dismiss their class action complaint challenging the City of Albuquerque's "Safe Traffic Operations Program" (STOP) Ordinance. While this appeal was pending, this Court issued opinions in Titus v. City of Albuquerque, 2011-NMCA-038, 149 N.M. 556, 252 P.3d 780, and Montoya v. City of Albuquerque, No. 29,838, slip op. (N.M. Ct. App. May 18, 2011), in which the plaintiffs raised similar challenges to the legality and constitutionality of the STOP Ordinance. Both Opinions upheld the validity of the STOP Ordinance in favor of the City of Albuquerque. Titus, 2011-NMCA-038, ¶ 1;Montoya, No. 29, 838, slip op. at 2. The New Mexico Supreme Court granted certiorari and reviewed both cases. Titus v. City of Albuquerque, 2011-NMCERT-005, 150 N.M. 667, 265 P.3d 718; Montoya v. City of Albuquerque, 2011-NMCERT-008, 268 P.3d 514. Upon this Court's own motion, we issued an order to hold this case in abeyance pending the decisions by the Supreme Court in Titus and Montoya. The Supreme Court has now quashed certiorari in both cases. Titus, 2013-NMCERT-003, __ P.3d __ (No. 32,941, Mar. 22, 2013), and Montoya, 2013-NMCERT-003, __ P.3d __ (No. 33,070, Mar. 22, 2013). {2} The district court dismissed the present case before it reached the merits, concluding that Plaintiffs were already represented as part of the certified class in Montoya. On appeal, Plaintiffs challenge the procedure used by the district court and do not argue that their interests are somehow different than the class in the Montoya case. We find nothing in the record that distinguishes the merits of the present case from those decided by this Court in Montoya and Titus. The merits of Plaintiffs' arguments were either directly considered in Titus and Montoya or are governed by the issues raised and analysis in those cases. Nothing further remains to be decided on the merits and any procedural error by the district court would now be moot. See Glaser v. LeBus, 2012-NMSC-012, ¶ 12, 276 P.3d 959 (affirming the district court if it is right for any reason); Maralex Res., Inc. v. Gilbreath,2003-NMSC-023, ¶ 13, 134 N.M. 308, 76 P.3d 626 ("[A]n appellate court will affirm the district court if it is right for any reason and if affirmance is not unfair to the appellant." (internal quotation marks and citation omitted)). We therefore affirm the district court's dismissal based on our holdings in Titus, 2011-NMCA-038, ¶ 1 and Montoya, No. 29, 838, slip op. at 2. {3} IT IS SO ORDERED.
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TIMOTHY L. GARCIA , Judge
WE CONCUR:
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JAMES J. WECHSLER, Judge
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JONATHAN B. SUTIN, Judge