STATE
OF
FIRST JUDICIAL DISTRICT COURT
NEW MEXICANS FOR FREE ENTERPRISE,
THE
MARK KIFFIN, MARK C. MILLER,
PRANZO, ZUMA CORPORATION,
ROBBIE DAY, and PINON GRILL AT
THE HILTON OF
Plaintiffs,
v. No.
D-101-CV-2003-00468
THE CITY OF
Defendant.
CITY’S
REPLY TO PLAINTIFFS’ RESPONSE TO THE
CITY
OF SANTA FE’S MOTION FOR SUMMARY JUDGMENT
Plaintiffs respond to the City of
It cannot be disputed that the New Mexico Legislature has
expressly conferred on the City the power to adopt ordinances for the purpose
of “providing for the safety, preserving the health, promoting the prosperity
and improving the morals, order, comfort and convenience of the municipality
and its inhabitants.” Section
It is also undisputed that even if an ordinance were
considered a law governing “civil relationships” within the meaning of Article
X, § 6(D) of the New Mexico Constitution, the restriction on such ordinances expressly does not apply to ordinances enacted
“incident to the exercise of an independent municipal power.” Plaintiffs recognize that an ordinance is incident
to an independent municipal power “if it protects the health, safety and
welfare of its inhabitants.” Plaintiffs’
Response to City of
Plaintiffs take a similar approach in their arguments that the Ordinance violates the Equal Protection and Due Process clauses. Here, they ignore the long-accepted principle that such challenges to minimum wage laws and other social and economic legislation are reviewed using the deferential “rational basis” standard, which requires courts to uphold legislation if any rational basis for the law’s enactment, or the classifications included within it, can be discerned or even imagined. Under this principle, courts are forbidden from second-guessing the wisdom or factual support for policies and distinctions adopted by the legislative body. Plaintiffs, without citing a single supporting authority, assert that Santa Fe’s minimum wage ordinance is subject to “strict scrutiny”—reserved for laws such as those discriminating on the basis of race or restricting fundamental rights like free speech—and invite this Court to substitute its own judgment for that of the Santa Fe City Council. There is no basis for Plaintiffs’ assertion.
Plaintiffs’ argument
that the Ordinance is preempted by the New Mexico Minimum Wage Act (“MWA”) is
equally without merit. Plaintiffs admit
that under the New Mexico Constitution, municipalities have all legislative
power “not expressly denied by general law.”
Art. X, § 6(D). But they can
point to no language in the MWA constituting an express denial of a city’s
power to adopt a local minimum wage. In
the absence of such an express denial, preemption will be found only where
there is a clear conflict between the ordinance and the state law at
issue. Plaintiffs simply ignore the
well-established principle of
Plaintiffs’ argument that the Ordinance conflicts with
Plaintiffs’ final argument that the Ordinance conflicts
with Eminent Domain Law and is an unconstitutional taking is frivolous. It ignores unanimous authority that laws do
not involve a taking merely because compliance requires the payment of money. Plaintiffs’ contention to the contrary would
render invalid virtually every law that requires businesses to spend money to
meet health, safety, environmental and other regulatory requirements.
It is plain that there are no material disputed issues of fact and that this motion for summary judgment presents pure questions of law.
Plaintiffs admit virtually all of the Undisputed Material
Facts set forth by the City, as they must.
See Pl. Resp. ¶ 1 (admitting ¶
1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16, 18, 19, 21, 22, 27, 28, 29 and 30 of
the City’s Statement). The City provided
a detailed legislative history of the Ordinance solely to show the lengthy,
open democratic process that led to its enactment and the economic and social
debate about the wisdom of the Ordinance, which the City ultimately resolved in
favor of the Ordinance by a 7-to-1 vote.
This history was not offered as an invitation to the Court to second
guess the City Council’s resolution of that debate—which the Court may not do
under established principles of New Mexico and federal law—but simply so the
Court could understand the rational basis for the City Council’s legislative
enactment. See Mov. Br. 35-37.
Although Plaintiffs purport to dispute a handful of the items in the City’s Statement, on examination these “disputes” turn out to be mere semantic quibbles. Compare Mov. Br. ¶¶ 4, 5, 11, 12, 17, 20, 23, 24, 25, 26, 31 with Pl. Resp. ¶¶ 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12. There simply are no genuine disputes over any material facts set forth by the City.
Paragraphs 21, 22, 23, 24, 25, 26, 28, 29, 30, and 31 of
Plaintiffs’ Statement of Undisputed Material Facts are in fact the subject of
dispute as shown in the legislative record, but they are not material as a
matter of law to the issues before the Court.
These disputes concern the wisdom, policy and judgments of the
legislators in adopting the Ordinance to protect the health, safety and welfare
of the citizens of
The assertions in paragraphs 14-18 of Plaintiffs’
Statement of Undisputed Material Facts purportedly showing economic hardships
to certain plaintiffs are immaterial as a matter of law because they go only to
the policy merits of the Ordinance which may not be considered. In any event, these “facts” should not be
considered because Plaintiffs have submitted no admissible evidence supporting
them. See Rule 1-056(E) NMRA 1998. Plaintiffs have submitted conclusory
affidavits stating baldly that certain individual Plaintiffs anticipated or
experienced certain rates of return and that as a result of the Ordinance, they
will experience substantially lower or negative returns. See Pl.
Resp., Exhibits 2, 3, 4, 5. Each of them
recites that these conclusions are based on an increase in the minimum wage to
$10.50 per hour, something that will not occur until 2008. The affidavits do not describe Plaintiffs’ factual
basis or methodology for calculating “rates of return,” what assumptions were used
concerning the number of employees who would have their wages increased and by
how much, or what prices these Plaintiffs would or could charge for their
products or services to cover the wage increases thereby eliminating or
substantially mitigating any economic hardship.
Without such information, Plaintiffs’ assertions are worthless. The statement of the national average return
for restaurants in paragraph 19 of Plaintiffs’ Statement is similarly
immaterial and also inadmissible because it is based on a conclusory assertion
of an accountant without any back up and without any indication of its source. See Pl.
Resp. 5, Exhibit 6.
Plaintiffs’ main argument is that the Ordinance is invalid because it is a law “governing civil relationships” under the New Mexico Constitution, which provides:
A municipality which adopts a charter may exercise all legislative powers and perform all functions not expressly denied by general law or charter. This grant of powers shall not include the power to enact private or civil laws governing civil relationships except as incident to an independent municipal power.
Article X, §6(D).
As discussed below, the City submits that an ordinance regulating minimum wages does not govern “civil relationships” within the meaning of the New Mexico Constitution. As pointed out in the City’s Moving Brief, however, the Court need not address this issue—one of first impression—because, even if the Ordinance were a “law governing civil relationships,” the Ordinance so clearly falls within the exception in Article X, §6(D) for “laws enacted incident to an independent municipal power.” We therefore first address the simpler issue: whether a minimum wage law such as the Ordinance falls within the Article X exception because it was enacted pursuant to the City’s independent power to promote the “health, safety and welfare” of its inhabitants.
As discussed in the City’s Moving Brief (19-23), the New Mexico Legislature has made three grants of independent power to its municipalities that are relevant here:
· Section 3-17-1 NMSA 1978: municipalities have the power to “adopt ordinances not inconsistent with the laws of New Mexico for the purpose of . . . providing for the safety, preserving the health, promoting the prosperity and improving the morals, order, comfort and convenience of the municipality and its inhabitants.”
·
Section
· Section 3-38-1 NMSA 1978: municipalities may regulate businesses if “conducive to the promotion of the health and general welfare of the municipality.”
The Ordinance was enacted pursuant to these independent powers granted to municipalities by the New Mexico Legislature.[2]
Plaintiffs agree that an ordinance is
“‘incident to the exercise of an independent municipal power’ if it protects
the health, safety and welfare of its inhabitants.” Pl. Resp. 17. They argue, however, that “Health, Safety,
and Welfare” do not include the power to impose a minimum wage. Pl. Resp.
17-18. This is absurd. Since 1937, the United States Supreme Court
and state and federal courts throughout the country have held that setting a
minimum wage is a classic exercise of a government’s power to promote the
health, safety and welfare. See Mov. Br. 21-22; West Coast Hotel v. Parrish,
300
Plaintiffs cite no case holding that a
minimum wage law is not a valid exercise of the health, safety and welfare
power. Moreover, none of the cases cited
by Plaintiffs addresses the issue of whether a minimum wage law falls within
the exception found in Article X, § 6(D) of the New Mexico Constitution or
similar provisions in other state constitutions.
The only case cited by Plaintiffs that they
claim addresses a minimum wage law in the context of such a constitutional
provision is New Orleans Campaign for a
Living Wage v. City of
Plaintiffs misleadingly cite to a concurring opinion in the City of
Plaintiffs also rely heavily on
Plaintiffs also rely on a
None of these non-New
As discussed above, the provision in the New
Mexico Constitution denying municipalities the power to enact “private or civil
laws governing civil relationships except as incident to the exercise of an
independent municipal power” (Article X, §6(D)) adopts the language of the Model Constitutional Provisions for
Municipal Home Rule and the Model
State Constitution. The exact
meaning of the term “civil relationships” in that provision is uncertain. See,
e.g., Richard Briffault, What about
the “Ism”? Normative and Formal Concerns in Contemporary Federalism, 47
Vand. L. Rev. 1303, 1343 (1994). Contrary
to Plaintiffs’ suggestion, no
Dominguez
v. Cruz, 95 N.M. 1, 617 P.2d 1322
(N.M. App. 1980) cited by Plaintiffs (See
Pl. Resp. 11) has no bearing on the meaning of “civil relationships” as used in
Article X, § 6(D). The issue in that
case was whether an oral agreement between cohabitating adults entered into
under a promise of marriage can constitute an enforceable contract. The court in Dominguez merely mentioned in passing that “marriage is only one
type of civil relationship.”
Many of the cases interpreting provisions
similar to Article X, § 6(D) attempt to draw a distinction between laws
governing “private” or “civil” relationships from the exercise of traditional
regulatory powers. As noted in the
City’s Moving Brief, a leading scholar suggests the restriction on laws
governing civil relationships was intended to prevent municipalities from
enacting comprehensive codes covering contract, tort, property and similar
bodies of “private” law. See Richard Briffault, What about the “Ism”? Normative and Formal
Concerns in Contemporary Federalism, 47 Vand. L. Rev. 1303, 1343 (1994); see also Chuckney, 331 N.E.2d at 783
(noting in discussion of “civil relationships that “[f]or example, a city
should not be able to enact its own separate law of contracts or domestic
relations since these areas are unsuited to less than statewide legislation”); Mov.
The preferable approach is to examine whether
a particular regulation—in this case a local minimum wage law—can be said to
regulate a “private” relationship, as distinct from a matter considered to be a
matter of overwhelmingly public concern.
The minimum wage payable to workers can hardly be viewed as a matter to
be determined privately between employer and employee as a simple matter of
contract. For almost seven decades it
has been accepted that because of the intimate connection between wages and the
general health, safety and welfare of a community, the decision regarding what
minimum wage must be paid to workers is subject to extensive and continually
changing federal, state and municipal regulation. This aspect of the employment relationship
has long been considered subject to public control; no private employer has the
right to choose the minimum wage paid to workers. Every employer in the
In sum, the Ordinance establishing a minimum
wage for
There is no dispute that under the New Mexico
Constitution, municipalities have all legislative power “not expressly denied
by general law.” Art. X, § 6(D). The phrase “expressly denied” means “that
some express statement of the authority or power denied must be contained in
such general law . . . otherwise no limitation exists.” Apodaca
v. Wilson, 86 N.M. 516, 521-22, 525
P.2d 876 (1974). This includes “words or
expressions which are tantamount or equivalent” to an express statement that a
municipality “must comply and cannot operate to the contrary” of the general
law. Haynes
v. Bonem, 114 N.M. 627, 634, 845 P.2d
150 (1992) (internal citations omitted).
Plaintiffs’ arguments that such express denials of municipal power to
enact a local minimum wage are contained in several
Plaintiffs argue that the New Mexico Minimum
Wage Act (“MWA”) preempts the Ordinance because the Ordinance provides greater protections
to workers within the City of
Plaintiffs argue that because the New Mexico Minimum Wage Act sets minimum wage standards for “all workers” in the state, the Act preempts the field, barring municipalities from enacting ordinances setting higher minimums. See Pl. Resp. 20-22. Plaintiffs cite no authority for this proposition because there is none. Nor can they point to any words or phrases in the MWA that are “tantamount to an express denial” of municipal power. There is no indication in the statute that higher minimums adopted to address unique local conditions, such as a particularly high cost of living, conflicts with the minimum wage set by the MWA. As the New Mexico Supreme Court has held, “[t]he purpose [of the Home Rule Amendment] was to give local communities full power in matters of local concern, that is, in those matters which peculiarly affected the inhabitants of the locality, not in common with the inhabitants of the whole state.” Haynes, 114 N.M. at 633. Moreover, the New Mexico Attorney General specifically examined the issue of municipal minimum wage laws and found that the MWA does not preempt municipal ordinances establishing a higher minimum than the MWA. The Attorney General reasoned that the MWA “only establishes a floor below which wages cannot be paid in municipalities” and that accordingly, there is no conflict created when a municipality establishes a higher minimum wage. See Opinion of Attorney General of New Mexico attached hereto as an Appendix.
Plaintiffs argue that if the