Harjo v. City of Albuquerque (326 F. Supp. 3d 1145, 2018)

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Plaintiff's Motion for Partial Summary Judgment and Supporting Memorandum, filed October 16, 2017 (Doc. 67)("MSJ"); (ii) the Defendant's Motion and Supporting Memorandum to Strike Declaration of Joseph T. Gardemal III in Support of Plaintiff's Motion for Partial Summary Judgment, filed October 30, 2017 (Doc. 73)("Motion to Strike"); and (iii) the Plaintiff's Motion for Modification and/or Reconsideration, filed April 27, 2018 (Doc. 97)("Motion"). The Court held a hearing on June 13, 2018. The primary issues are: (i) whether the City of Albuquerque's forfeiture attorneys and enforcement personnel have an unconstitutional institutional incentive to seize cars and prosecute forfeiture actions; (ii) whether the City of Albuquerque's forfeiture officials -- enforcement personnel, prosecutors, and administrative law judges -- have an unconstitutional personal incentive to seize cars, prosecute forfeiture actions, and conclude that vehicles are forfeiture eligible; (iii) whether the City of Albuquerque's forfeiture program violates the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States of America by placing the burden of proof on vehicle owners to prove that they have a right to keep their property; and (iv) whether the Court should strike the Declaration of Joseph T. Gardemal III (dated October 9, 2017), filed October 16, 2017 (Doc. 67-2)("Gardemal Decl."), as an improper expert opinion. The Court concludes that the City of Albuquerque has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years. Thus, there is a "realistic possibility" that forfeiture officials' judgment "will be distorted by the prospect of institutional gain" -- the more revenues they raise, the more revenues they can spend. Marshall v. Jerrico, Inc., 446 U.S. 238, 251, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) (" Marshall").

Independent from the institutional incentive, the Court concludes that, viewing the evidence in the light most favorable to the City of Albuquerque, forfeiture officials have no unconstitutional personal incentive, because their salary is not tied to forfeiture revenue. Therefore, the possibility that they would feel pressured to prosecute more cases or hold for the City of Albuquerque to maintain their income is too remote to implicate due process. The forfeiture program, however, violates procedural due process, because owners have to prove that their cars are not subject to civil forfeiture. Finally, the Court will not strike the Gardemal Decl. because the Gardemal Decl.'s relevant portions contain factual statements that arise from admissible evidence. Accordingly, the Court grants the MSJ in part and denies it in part, denies the Motion to Strike, and grants the Motion.

FACTUAL BACKGROUND

The Court draws the factual background from the parties' undisputed material facts in their summary judgment motion papers. See MSJ ¶¶ 1-70, at 3-15; Defendant's Response in Opposition to Plaintiff's Motion for Partial Summary Judgment, ¶¶ 1-64, at 3-14, filed October 30, 2017 (Doc. 72)("MSJ Response"); Reply in Support of Plaintiff's Motion for Partial Summary Judgment, ¶¶ 7-60, at 3-6, filed November 13, 2017 (Doc. 77)("MSJ Reply"). While the parties dispute particular facts' materiality, there are few factual disputes. See, e.g., MSJ Response ¶¶ 4-5, 8, 14, at 3, 5. The Court details those undisputed facts below.

1. The City of Albuquerque's Forfeiture Program.

The City of Albuquerque's motor vehicle seizure and forfeiture ordinance, see Revised Ordinances of Albuquerque ("ROA") §§ 7-6-1 to -7 ("Forfeiture Ordinance"), provides that a vehicle is "subject to immediate seizure and forfeiture ... if it is ... [o]perated by a person in the commission of a DWI offense" and the driver has at least one prior DWI arrest, summons, or conviction. MSJ ¶ 1, at 3 (citing ROA § 7-6-2(A) ). See MSJ Response ¶ 1, at 3 (not disputing this fact). The Forfeiture Ordinance also provides for forfeiture based on other violations, including any "felony offense" involving the "use of a firearm." MSJ ¶ 2, at 3 (citing ROA § 7-9-3). See MSJ Response ¶ 2, at 3 (not disputing this fact). If somebody other than the alleged offender owns the seized vehicle, the owner bears the burden to "demonstrate[ ] by a preponderance of the evidence that the owner ... could not have reasonably anticipated that the vehicle could be used" to commit the alleged offense. MSJ ¶ 3, at 3 (citing ROA § 7-6-7(A) ). See MSJ Response ¶ 3, at 3 (not disputing this fact).

Vehicles seized under the Forfeiture Ordinance "are brought for intake to the City's DWI Seizure Unit." MSJ ¶ 4, at 3 (citing Deposition of Shane Rodgers at 11:20-23 (taken August 2, 2017), filed October 16, 2017 (Doc. 67-8)("Rodgers Depo."); id. at 12:23-13:15). See MSJ Response ¶ 4, at 3 (not disputing this fact). The DWI Seizure Unit is housed within the City of Albuquerque Police Department and "consists of two uniformed officers and five civilian employees." MSJ ¶ 4, at 3 (citing Deposition of Donovan Rivera at 7:10-10:7 (taken May 17, 2017), filed October 16, 2017 (Doc. 67-11)("D. Rivera Depo.") ). See MSJ Response ¶ 4, at 3 (not disputing this fact). The DWI Seizure Unit works closely with the "City's Legal Department, where two city attorneys are assigned to handle vehicle forfeiture cases." MSJ ¶ 4, at 3 (citing Rodgers Depo. at 19:20-20:21; Legal Department Safe City Strike Force Division, at 1, filed October 16, 2017 (Doc. 67-20) ). See MSJ Response ¶ 4, at 3 (not disputing this fact).

When Pepe Hernandez, a DWI Seizure Unit employee, "conducts an investigation into [an] alleged drunk driver," his "investigation consists mostly" of electronic database searches. MSJ ¶ 5, at 3 (citing Rodgers Depo. at 13:10-12; D. Rivera Depo. 46:9-12; Deposition of Pepe Hernandez at 8:4-15 (taken August 2, 2017), filed October 16, 2017 (Doc. 67-13)("Hernandez Depo.") ). See MSJ Response ¶ 5, at 3 (not disputing this fact). As part of this investigation, Hernandez is responsible "for verifying that the seizure occurred inside the city limits." MSJ ¶ 6, at 4 (citing D. Rivera Depo. at 45:16-46:1). See MSJ Response ¶ 6, at 4 (not disputing this fact). "About once a year," Hernandez determines that a vehicle "is not subject to forfeiture because it was seized outside city limits." MSJ ¶ 6, at 4 (citing Hernandez Depo. 13:19-14:2). See MSJ Response ¶ 6, at 4 (not disputing this fact). There is "no type of different investigation if the vehicle is owned by somebody other than the alleged drunk driver." MSJ ¶ 7, at 4 (citing D. Rivera Depo. at 12:6-13). No one from the City of Albuquerque Police Department contacts the owner to "conduct an interview prior to proceeding with the forfeiture" and no one from that department "investigates to determine whether the owner might have a valid innocent owner defense." MSJ ¶ 7, at 4 (citing Rodgers Depo. at 15:2-16:10; Hernandez Depo. at 20:9-21:25).

"When a vehicle is seized, the owner has ten days to pay a $50 fee to request an administrative hearing." MSJ ¶ 8, at 4 (citing ROA §§ 7-6-5(D), (F) ). See MSJ Response ¶ 8, at 3, 5 (not disputing this fact). If the owner does not request a hearing, which happens about sixty times a month, "the vehicle is deemed abandoned and sold at auction." MSJ ¶ 8, at 4 (citing D. Rivera Depo. at 35:21-24; Deposition of Lacresia Rivera at 20:3-18 (taken May 16, 2017), filed October 16, 2017 (Doc. 67-12)("L. Rivera Depo.") ). See MSJ Response ¶ 8, at 3, 5 (not disputing this fact). Vehicle owners may bid for their vehicles at auction -- even if the owner was the one driving the car when the offense occurred -- and "the City is aware that owners sometimes choose to buy back their vehicle rather than contest the forfeiture." MSJ ¶ 9, at 4 (citing Rodgers Depo. at 63:13-17; L. Rivera Depo. at 24:7-10). See MSJ Response ¶ 9, at 5 (not disputing this fact).

If the owner requests a hearing, "a city attorney conducts settlement negotiations with the owner or her representative" before the hearing. MSJ ¶ 10, at 4 (citing Rodgers Depo. at 19:20-20:3). See MSJ Response ¶ 10, at 5 (not disputing this fact). During settlement negotiations, the City of Albuquerque's forfeiture attorneys exercise "discretion about what kind of settlement offer to make." MSJ ¶ 10, at 4 (citing Rodgers Depo. at 21:11-22). See MSJ Response ¶ 10, at 5 (not disputing this fact). "City attorneys can offer a broad range of settlement terms," ranging from a $500 payment, with no boot requirement, "to a $5,100 payment and a requirement to boot the car for two years." MSJ ¶ 11, at 4 (citing D. Rivera Depo. at 42:13-43:6; L. Rivera Depo. at 35:4-10). See MSJ ¶ 11, at 5 (not disputing this fact). In making settlement offers, "city attorneys are guided by a matrix setting forth approved settlement offers for various circumstances," but those attorneys have discretion to part from the matrix. MSJ ¶ 12, at 5 (citing Rodgers Depo. at 36:3-6; D. Rivera Depo. at 62:5-63:2). See MSJ Response ¶ 12, at 5 (not disputing this fact). For example, "a city attorney could exercise discretion to make a favorable settlement offer if he felt the owner had a valid innocent owner defense." MSJ ¶ 12, at 5 (citing Rodgers Depo. at 23:5-25:25). See MSJ Response ¶ 12, at 5 (not disputing this fact).

If the owner does not settle, "the case proceeds to a hearing before the City's administrative hearing officer." MSJ ¶ 13, at 5 (citing Rodgers Depo. at 19:20-20:3). See MSJ Response ¶ 13, at 5 (not disputing this fact). "The hearing officer is responsible for determining whether the owner has proved" his or her innocence, and a "number of factors" go into that decision, including "the number of prior incidents and the time elapsed" since the most recent incident. MSJ ¶ 14, at 5 (citing ROA § 7-6-7(A); Rodgers Depo. at 40:11-41:6). See MSJ Response ¶ 14, at 5 (not disputing this fact). The hearing officer may exercise his or her discretion in weighing those factors. See MSJ ¶ 14, at 5 (citing Rodgers Depo. at 40:11-41:6); MSJ Response ¶ 14, at 5 (not disputing this fact).

"Even if the hearing officer rules for the owner, the hearing officer can require payment of storage fees as a condition of the vehicle's release." MSJ ¶ 15, at 5 (citing ROA § 7-6-5(D) ). See MSJ Response ¶ 15, at 3, 5 (not disputing this fact). The "default" is that the storage and towing fees are imposed, but those fees "can be waived in unusual cases." MSJ ¶ 15, at 5 (citing Rodgers Depo. at 48:10-15). "Even if the hearing officer rules in favor of the City, the City proceeds to file a forfeiture case in state court." MSJ ¶ 16, at 5 (citing ROA § 7-6-5(D) ). See MSJ Response ¶ 16, at 6 (not disputing this fact). Should the owner prevail in state court, the state court can still "impose storage fees as a condition of the vehicle's release." MSJ ¶ 17, at 5 (citing ROA § 7-6-7(E) ). See MSJ Response ¶ 17, at 3 (not disputing this fact). "Storage fees accumulate at a rate of $10 per day." MSJ ¶ 18, at 5 (citing Rodgers Depo. at 51:8-9). See MSJ Response ¶ 18, at 6 (admitting this fact). "The City's Chief Hearing Officer has stated that 'about half of the vehicles that APD seizes are not owned by the offender that we confiscate it from' "; rather, " 'it's the mothers, the fathers, the wives, the girlfriends, the brothers, [and] the uncles' " who own the vehicles. MSJ ¶ 19, at 6 (quoting Santa Fe Vehicle Forfeiture Conference at 4:29:05-22 (dated September 10, 2014)(Harada)("Forfeiture Conf.") ).See MSJ Response ¶ 19, at 6 (not disputing this fact).

2. The Forfeiture Program's Revenues.

Under the Forfeiture Ordinance, "the proceeds must be used to carry out" the Forfeiture Ordinance's "purpose and intent," and thus, by law, "proceeds go first to cover the costs of administering the ordinance, with any excess used for DWI enforcement prevention and education." MSJ ¶ 20, at 6 (citing ROA § 7-6-5(E) ). See MSJ Response ¶ 20, at 3 (not disputing this fact). The forfeiture program operates as a "special revenue fund," meaning that the forfeiture program has "a specific revenue funding source and a specific restricted use." MSJ ¶ 21, at 6 (citing Deposition of Aubrey Thompson at 18:14-19:9 (taken May 4, 2017)(Doc. 67-9)("Thompson Depo."). See MSJ Response ¶ 21, at 6 (admitting this fact). The forfeiture program "primarily generates revenue through settlements and auctions." MSJ ¶ 21, at 6 (citing Thompson Depo. at 22:2-7; Deposition of Linda Cutler-Padilla at 21:1-13 (taken May 16 2017), filed October 16, 2017 (Doc. 67-10)("Cutler-Padilla Depo.") ). See MSJ Response ¶ 21, at 6 (admitting this fact). Revenue raised from the forfeiture program "is used to pay expenses associated with the program, including employee compensation, tow fees, supplies, and purchases of vehicles and other equipment." MSJ ¶ 21, at 6 (citing Thompson Depo. at 37:8-23; Cutler Padilla Depo. at 22:5-15). See MSJ Response ¶ 21, at 6 (admitting this fact). "The City accounts for revenues and expenses associated with its vehicle forfeiture program using a unique project identification code, which allows it to segregate those revenues and expenses from other city funds." MSJ ¶ 22, at 6 (citing Gardemal Decl. ¶ 20, at 7; Thompson Depo. at 51:9-15; id. at 53:12-17). See MSJ Response ¶ 22, at 6 (not disputing this fact).

Purchases for the forfeiture program "are sometimes disallowed because the program has not generated sufficient revenue to pay for them," and, on the other hand if "more revenue comes in," then "expenditures can increase." MSJ ¶ 23, at 7 (citing Thompson Depo. at 135:20-23; id. at 136:2-5). See MSJ Response ¶ 23, at 6-7 (not disputing this fact). Forfeiture program expenditures can exceed program revenues, as the forfeiture program may draw upon "the City's general fund for expenses." MSJ Response ¶ 23, at 6-7 (citing Cutler Padilla Depo. at 71:23-72:21; Thompson Depo. at 25:23-26:1; id. at 55:6-12; id. at 57:12-18; id. at 139:8-12). See MSJ Reply ¶ 23, at 3 (not disputing this fact). Between 2015 and 2016, the "General Fund budget has been very, very, very tight." MSJ Reply ¶ 23, at 4 (quoting Thompson Depo. at 148:17-19)(citing Cutler-Padilla Depo. at 72:12-21).

"Revenue over and above expenses carries" from year to year, "and the program is allowed to draw on accumulated surplus to pay expenses in later years." MSJ ¶ 24, at 7 (citing Cutler-Padilla Depo. at 15:6-19; id. at 16:14-17). See MSJ Response ¶ 24, at 7 (not disputing this fact). "Revenue from forfeitures, settlements, and fees exceeded expenses paid from the program's special revenue fund in fiscal years ... 2010, 2011, 2013, and 2014, meaning the program generated surplus fund balance in each of those fiscal years." MSJ ¶ 25, at 7 (citing Gardemal Decl. ¶ 25, at 9-10; Cutler-Padilla Depo. at 15:9-12). During fiscal years 2009 to 2016, the forfeiture program generated $11.8 million in revenue "in the form of forfeitures, settlements and fees," whereas, during the same period, "the City accounted for a total of $13.5 million in revenue using the program's identification code," meaning that eighty-seven percent of the forfeiture program's revenue "was generated via forfeitures, settlements, and fees." MSJ ¶ 26, at 7 (citing Gardemal Decl. ¶¶ 25-26, at 9-10). See MSJ Response ¶ 26, at 7 (not disputing that fact). "That 87% figure would be even higher if not for the approximately $1.7 million in insurance payments that were accounted for using the program's identification code," which, according to the "City's Executive Budget Analyst ..., th[e] insurance money was 'kind of separate I believe from the DWI' and that it was deposited in the program's special revenue fund 'just to kind of hold it.' " MSJ ¶ 27, at 7 (quoting Cutler-Padilla Depo. at 21:1-13; citing Gardemal Decl. ¶ 26, at 10). See MSJ Response ¶ 27, at 7 (not disputing this fact).

"One of the most significant expenses paid out of program revenues is employee compensation." MSJ ¶ 28, at 7. See MSJ Response ¶ 28, at 7 (admitting this fact). During fiscal years 2009 to 2016, "the City used $3.7 million in program revenues to pay employee compensation," which amounts to twenty-seven percent "of all expenses paid with program revenues." MSJ ¶ 28, at 7-8 (citing Gardemal Decl. ¶ 30, at 12). See MSJ Response ¶ 28, at 7 (admitting this fact). Every fiscal year, "the City makes a lump-sum transfer" out of the forfeiture program's account to pay the entire "salaries and benefits of employees associated with the program." MSJ ¶ 29, at 8 (citing Gardemal Decl. ¶¶ 32-35, at 13-15; Cutler-Padilla Depo. at 22:11-15; id. at 25:13-23; id. at 26:8-20; id. at 29:16-22; City of Albuquerque 2016 Approved Budget, at 53, filed October 16, 2017 (Doc. 67-14)("2016 Budget") ). See MSJ Response ¶ 28, at 7 (admitting this fact). The salary transfer covers the "civilian employees at the DWI Seizure Unit and the city attorneys who handle forfeiture cases." MSJ ¶ 29, at 8 (citing Cutler-Padilla Depo. at 25:13-23; Gardemal Decl. ¶¶ 30-35, at 12-15). See MSJ Response ¶ 29, at 7 (admitting this fact).

"The City also uses program revenue to cover the program's non-payroll costs." MSJ ¶ 30, at 8 (citing Gardemal Decl. ¶¶ 31, 44-48, at 12, 18-20). See MSJ Response ¶ 30, at 7 (admitting this fact). For instance, "program revenue goes to pay tow fees, process server fees, and other costs incurred during forfeiture proceedings." MSJ ¶ 30, at 8 (citing Gardemal Decl. ¶ 48, at 20). See MSJ Response ¶ 30, at 7 (not disputing this fact). The City of Albuquerque also "uses program revenues to pay to lease its impound lot"; renting that lot cost the City of Albuquerque "$1.8 million" in fiscal years 2009 and 2016. MSJ ¶ 30, at 8 (citing Gardemal Decl. ¶ 47, at 19). See MSJ Response ¶ 30, at 7 (admitting this fact).

"Money left over above program expenses is used to fund discretionary purchases"; for example, "over fiscal years 2009 to 2016, the City used $989,719 in program revenues to pay for new police vehicles, $379,894 to pay for radar guns, and $236,322 to pay for advertising in the local newspaper." MSJ ¶ 31, at 8 (citing Gardemal Decl. ¶¶ 55-56). MSJ Response ¶ 31, at 8 (not disputing this fact and admitting that "net revenue may be used for discretionary equipment purchases"). In fiscal year 2016, "the City made a lump sum transfer of $3.3 million in accumulated fund balance to pay for additional new vehicles and a new educational building." MSJ ¶ 31, at 8 (citing Gardemal Decl. ¶¶ 52-54, at 21-23). A subsection of a City of Albuquerque policy document entitled "Concept of Operations" states that "[t]he DWI Seizure Unit will provide support to the [Albuquerque Police] Department by administering the City's vehicle nuisance ordinance and provide equipment to field officers to enhance enforcement and education efforts." MSJ Response ¶ 32, at 8 (citing Traffic Division -- DWI Section, at 1 (effective date July 31, 2013), filed October 16, 2017 (Doc. 67-19) ).

"The forfeiture program cannot spend money without an appropriation from the City Council, so every year the City Council includes the program in its appropriations bill." MSJ ¶ 33, at 9 (citing Gardemal Decl. ¶¶ 21-22, at 8; Thompson Depo. at 54:20-22). See MSJ Response ¶ 33, at 8 (not disputing this fact). "The City sets the amount of this appropriation by estimating program revenues for the coming fiscal year." MSJ ¶ 33, at 9 (citing Cutler-Padilla Depo. at 17:18-22). See MSJ Response ¶ 33, at 8 (not disputing this fact).

"As a practical matter, the program's spending is limited by its revenue, not by the City Council." MSJ ¶ 34, at 9 (citing Thompson Depo. at 134:21-136:23). If the forfeiture program has more funds "available than [the] City Council has appropriated, it can spend even more and [the] City Council will pass a clean up bill retroactively authorizing the spending." MSJ ¶ 34, at 9 (citing Cutler-Padilla Depo. at 17:12-18:17). See MSJ Response ¶ 34, at 8 (not disputing this fact). "Every year the City's annual budget includes 'performance measures' for the vehicle forfeiture program." MSJ ¶ 35, at 9 (quoting 2016 Budget at 181)(citing City of Albuquerque FY/15 Approved Budget at 183, filed October 16, 2017 (Doc. 67-15)("2015 Budget"); City of Albuquerque FY14 Approved Budget at 185, filed October 16, 2017 (Doc. 67-16)("2014 Budget"); City of Albuquerque FY 2013 Approved Budget at 192, filed October 16, 2017 (Doc. 67-17)("2013 Budget") ). See MSJ Response ¶ 35, at 9 (not disputing this fact). These performance measures "set targets for the coming fiscal year for number of vehicles auctioned, number of vehicles released pursuant to settlements (broken down further between vehicles released with or without a boot and the accompanying payment of money), and revenue to be generated selling vehicles at auction." MSJ ¶ 35, at 9 (citing 2016 Budget at 181; Rodgers Depo. at 70:8-73:11). See MSJ Response ¶ 35, at 8 (not disputing this fact). In fiscal year 2016, "the City set a target to raise $615,000" and to sell "625 vehicles at auction." MSJ ¶ 36, at 9 (citing 2016 Budget at 181). See MSJ Response ¶ 36, at 8 (not disputing this fact). "The city also set a target to enter into 600 settlement agreements involving a boot and a payment of money and 350 settlements where the vehicle would be released without a boot for a smaller payment of money." MSJ ¶ 36, at 9 (citing 2016 Budget at 181). See MSJ Response ¶ 36, at 8 (not disputing this fact). The DWI Seizure Unit head stated that those performance measures are a " 'forecast of how we think we should do,' " and explained that, " 'overall, whether it's the private or the public sector, you've got to have goals' and that these performance measures provide" those goals. MSJ ¶ 37, at 9 (quoting D. Rivera Depo. at 30:7-21). See MSJ Response ¶ 37, at 8 (not disputing this fact). The annual budget's performance measure section "also includes data on the program's actual performance in the prior fiscal year, as well as the targets set for that prior year," making it "possible to see, at a glance, whether the program is meeting its performance targets." MSJ ¶ 38, at 10 (citing 2016 Budget at 181; D. Rivera Depo. at 30:7-31:3). See MSJ Response ¶ 38, at 8 (not disputing this fact).

Program personnel, including the city attorneys who handle forfeiture cases, compile these "annual performance measures." MSJ ¶ 39, at 10 (citing Rodgers Depo. at 69:12-18; D. Rivera Depo. at 31:12-20). See MSJ Response ¶ 39, at 9 (not disputing this fact). "The forfeiture program also tracks performance on a monthly basis." MSJ ¶ 40, at 10 (citing DWI Seizure Unit, Month of March, 2016 -- Month of May, 2016 Statistics, at 1-3, filed October 16, 2017 (Doc. 67-18)("DWI Seizure Unit Statistics"); D. Rivera Depo. at 20:9-13). See MSJ Response ¶ 40, at 9 (not disputing this fact). Every month "program personnel update a spreadsheet with the number of vehicles checked into the impound lot, the amount of revenue generated by settlement agreements, and the amount of revenue generated selling vehicles at auction." MSJ ¶ 40, at 10 (citing L. Rivera Depo. at 33:3-43:6). See MSJ Response ¶ 40, at 9 (not disputing this fact). "The spreadsheet then automatically generates a percentage comparison to the same month the year before, providing an immediate check on whether intake and revenue are trending up or down." MSJ ¶ 40, at 10 (citing D. Rivera Depo. at 22:23-23:8). See MSJ ¶ 40, at 9 (not disputing this fact).

"Annual performance evaluations for employees in the DWI Seizure Unit -- which serve to assess individual job performance -- list as an 'Output Measure[ ]' to 'increase the amount of revenue generated from Seized vehicles.' " MSJ ¶ 41, at 10 (quoting City of Albuquerque Employee Work Plan (Performance and Evaluation) for Lacresia Rivera, at 1 (dated August 30, 2016), filed October 16, 2017 (Doc. 67-21)("L. Rivera Eval."); City of Albuquerque Employee Work Plan (Performance and Evaluation) for Jose Hernandez, at 1 (dated August 30, 2016), filed October 16, 2017 (Doc. 67-22)("Hernandez Eval.") ). "The head of the DWI Seizure Unit agreed that these Output Measures serve as a 'measure of the unit's success or failure at meeting its objectives.' " MSJ ¶ 41, at 10 (citing D. Rivera Depo. at 29:19-21; L. Rivera Depo. at 55:2022; Hernandez Depo. at 30:23-25). "The City's budget for fiscal year 2016 lists as an 'accomplishment' of the Legal Department: 'Auctioned 570 vehicles ... generating $471,000 in proceeds to fund law enforcement efforts." MSJ ¶ 42, at 10 (citing 2016 Budget at 182). See MSJ Response ¶ 42, at 11 (not disputing this fact).

"In recent years," the forfeiture program's revenues have "declined, as fewer people are being caught driving under the influence." MSJ ¶ 43, at 11 (citing D. Rivera Depo. at 15:22-16:4). See MSJ Response ¶ 43, at 11 (not disputing this fact). "The City ascribes this decline to a variety of factors, including the rise of companies like Uber and Lyft that make it easier to drink outside the home without driving." MSJ ¶ 43, at 11 (citing Rodgers Depo. at 86:24-87:12; D. Rivera Depo. at 15:22-16:4). See MSJ Response ¶ 43, at 11 (not disputing this fact). "Whereas the program generated over $1.8 million in revenue in fiscal year 2010, the program generated only $760,466 in revenue in fiscal year 2016." MSJ ¶ 44, at 11 (citing Gardemal Decl. ¶ 25, at 10). See MSJ Response ¶ 44, at 11 (not disputing this fact). "In fiscal years 2015 and 2016, the program's expenses exceeded its revenues, and the program was able to make up the difference only by spending accumulated surplus revenue from past fiscal years." MSJ ¶ 45, at 11 (citing Cutler-Padilla Depo. at 16:18-17:19; Thompson Depo. at 140:2-5). See MSJ Response ¶ 45, at 11 (not disputing this fact). Revenue decline in recent years "has adversely affected morale in the DWI Seizure Unit." MSJ ¶ 46, at 11 (citing D. Rivera Depo. at 17:5-10; L. Rivera Depo. at 48:1-10).See MSJ Response ¶ 46, at 11 (not disputing this fact).

"This decline in revenue has also placed the forfeiture program under financial strain." MSJ ¶ 47, at 11 (citing D. Rivera Depo. at 8:6-7; Cutler-Padilla Depo. at 14:12-19). "The program has already had to cut expenses." MSJ ¶ 47, at 11 (citing D. Rivera Depo. at 17:7-10). "The decline in revenues has also been discussed at citywide budget meetings, and the program will have to make additional cuts going forward." MSJ ¶ 47, at 11 (citing Cutler-Padilla Depo. at 71:23-72:21; id. at 74:13-18; Email from Aubrey Thompson to Lacresia Rivera at 1 (dated November 22, 2016), filed October 16, 2017 (Doc. 67-25) ).

"The City's Executive Budget Analyst testified that declines in revenue could affect the job security of program personnel," saying that " 'it probably will be a discussion ... if revenues are going down, do we need all of these positions?' " MSJ ¶ 48, at 11 (quoting Cutler-Padilla Depo. at 77:5-11). See MSJ Response at 20 (admitting this fact). "Declines in program revenues could also affect the job security of hearing officers who decide forfeiture cases," as "the City eliminated six positions from the office of administrative hearings" in 2012, when the "City ended a red light ticketing program ... to cover a reduction in operations." MSJ ¶ 49, at 12 (citing 2013 Budget at 137).

"In 2013, an APD officer listed as an '[a]ccomplishment[ ]' that the program was able to 'maintain[ ] program revenue despite drop of intake.' " MSJ ¶ 50, at 12 (citing Email from Donovan Rivera to Shane Rodgers, Re: 2013 Accomplishments at 1 (dated August 23, 2013), filed October 16, 2017 (Doc. 67-29); Rodgers Depo. at 78:16-79:23). See MSJ Response ¶ 50, at 12 (not disputing this fact). "In April 2016 ... monthly data collected by the program shows that vehicle seizures were down 22% from the same time the year before, program revenues were down 9%, and the number of vehicles returned to owners with the minimum possible financial penalty was down a full 58%." MSJ ¶ 51, at 12 (citing DWI Seizure Unite Statistics at 2). See MSJ Response ¶ 51, at 13(not disputing this fact). "Although revenues were down in 2016, the City's annual targets were not"; the "City Council budgeted for the program to bring in $50[ ],000 more in 2016 than in 2014." MSJ ¶ 52, at 12 (citing Defendant City of Albuquerque's First Supplemental Responses to Plaintiff Arlene Harjo's First Set of Interrogatories, at 3, filed October 16, 2017 (Doc. 67-6)("Suppl. Interrog. Response"); Gardemal Decl. ¶ 22, at 8)(emphasis in MSJ). See MSJ Response ¶ 52, at 13 (not disputing this fact). "The 2016 annual budget, meanwhile, set a 'performance measure' for the program to generate $615,000 selling vehicles at auction -- the same goal as in fiscal year 2014 -- even though the program was on track to fall well short of that goal in 2015." MSJ ¶ 52, at 12 (citing 2016 Budget at 181). See MSJ Response ¶ 52, at 13 (not disputing this fact).

3. The Seizure and Attempted Forfeiture of Harjo's Car.

On Saturday, April 23, 2016, Harjo's son "asked if he could borrow Arlene's car to take a trip to the gym with a friend." MSJ ¶ 53, at 12 (citing Declaration of Arlene Harjo in Support of Plaintiff's Motion for Partial Summary Judgment ¶ 9, at 2 (dated October 10, 2017), filed October 16, 2017 (Doc. 67-1)("Harjo Decl.") ). See MSJ Response ¶ 53, at 13 (not disputing this fact). Harjo agreed to lend her car, "expecting that he would return within a few hours," and she "became worried when he did not return as expected." MSJ ¶ 53, at 12 (citing Harjo Decl. ¶¶ 9, 15, at 2-3). See MSJ Response ¶ 53, at 13 (not disputing this fact). The next morning, Harjo "learned that her son had lied to her, and had been arrested for DWI while returning from a rendezvous with his girlfriend." MSJ ¶ 54, at 13 (citing Harjo Decl. ¶ 15, at 3). See MSJ Response ¶ 54, at 13 (not disputing this fact). On that same morning, Harjo "learned that the City had seized her car for forfeiture." MSJ ¶ 54, at 13 (citing Harjo Decl. ¶ 16, at 4). See MSJ Response ¶ 54, at 13 (not disputing this fact).

"To avoid automatic forfeiture," Harjo "requested a hearing before the City's administrative hearing officer, paying $50." MSJ ¶ 55, at 13 (citing Harjo Decl. ¶ 16, at 4). See MSJ Response ¶ 55, at 13 (not disputing this fact). When Harjo arrived at the hearing "she was put in touch with a city attorney, who then offered to settle the case if Arlene agreed to pay $4,000 and boot her car for 18 months." MSJ ¶ 56, at 13 (citing Harjo Decl. ¶ 17, at 4). See MSJ Response ¶ 56, at 13 (not disputing this fact). "Arlene declined this settlement offer, as she could not afford to pay." MSJ ¶ 56, at 13 (citing Harjo Decl. ¶ 17, at 4). See MSJ Response ¶ 56, at 13 (not disputing this fact). "The city attorney who extended this settlement offer has his entire salary, plus benefits paid out of the vehicle forfeiture program's revenues." MSJ ¶ 57, at 13 (citing Defendant City of Albuquerque's Responses to Plaintiff Arlene Harjo's First Set of Interrogatories at 12, filed October 16, 2017 (Doc. 67-5)("Interrog. Response"); Gardemal Decl. ¶¶ 32-35, at 13-15). See MSJ Response ¶ 57, at 6 (not disputing this fact). "In fiscal year 2016, he was paid $70,776 in program revenues." MSJ ¶ 57, at 13 (citing Interrog. Response at 15). See MSJ Response ¶ 57, at 6 (not disputing this fact).

In the months leading up to Harjo's settlement offer, "this city attorney received multiple emails referencing the fact that program revenues go to pay the salaries of program employees, including city attorneys." MSJ ¶ 58, at 13 (citing Email from Aubrey Thompson to Eric Locher, copying Kyle Hibner and Donovan Rivera, at 1 (dated December 17, 2015), filed October 16, 2017 (Doc. 67-27)("Thompson Email"); Email from Eric Locher to Kyle Hibner, at 1 (dated August 31, 2015), filed October 16, 2017 (Doc. 67-28)("Locher Email") ). See MSJ Response ¶ 58, at 13 (admitting this fact). "Months after this settlement offer ... this city attorney was tasked to provide an update on the program's progress towards its annual performance measures for settlements, auctions, and auction revenues." MSJ ¶ 59, at 13 (citing Email from Becky Burnham to Elizabeth Page, Sandra Jamison, Jenica Jacobi, Kyle Hibner, Gabriel Campos, and Tyson Hummell, at 1 (dated July 14, 2016), filed October 16, 2017 (Doc. 67-26) ). See MSJ Response ¶ 59, at 14 (admitting this fact). The following month, "the City approved a raise" of "over $9,500 for this city attorney 'to reflect exceptional performance' " to be "covered by the DWI Enforcement Fund in FY/18." MSJ ¶ 60, at 13 (citing Interoffice Memorandum from Jessica Hernandez to Robert Perry at 1 (dated August 24, 2016), filed October 16, 2017 (Doc. 67-23)("Hernandez Memo") ). See MSJ Response ¶ 60, at 14 (admitting this fact).

Because Harjo "turned down the city attorney's settlement offer, she received a hearing before the City's Chief Hearing Officer." MSJ ¶ 61, at 13 (citing Harjo Decl. ¶ 18, at 4).See MSJ Response ¶ 61, at 13 (not disputing this fact). "The Chief Hearing Officer is aware of the financial importance of the forfeiture program"; at a "September 2014 forfeiture conference, he stated that the 'ordinance is written specifically' to provide revenue that must be returned to the program and that this 'allowed me to resist former mayors wanting to transfer it all to the general fund.' " MSJ ¶ 62, at 14 (citing Forfeiture Conf. at 1:20:30 (Harada); id. at 2:33:05 (Harada) ). See MSJ Response ¶ 62, at 6 (not disputing this fact). "When the City sought to negotiate a revenue-sharing agreement with Bernalillo County, city officials consulted with the Chief Hearing Officer about the percentage of program revenues that go to cover the program's costs." MSJ ¶ 63, at 14 (citing Thompson Depo. at 157:14-159:2; Email from Gregory Wheeler to Stan Harada at 1 (dated October 20, 2012), filed October 16, 2017 (Doc. 67-30) ). See MSJ Response ¶ 63, at 14 (not disputing this fact). "Of the 1668 hearings" that the Chief Hearing Officer conducted from 2015 to 2016, "a full 1288 (or 77%) were conducted under the City's vehicle forfeiture ordinance." MSJ ¶ 64, at 14 (citing Defendant City of Albuquerque's Response to Arlene Harjo's Third Set of Interrogatories ¶ 15, at 3 (filed October 16, 2017)(Doc. 67-7)("Third Interrog. Response"). See MSJ Response ¶ 64, at 14 (not disputing this fact).

At the hearing's conclusion, the "Chief Hearing officer found that Arlene did not carry her burden to establish that she was an innocent owner." MSJ ¶ 65, at 14 (citing Transcript of Vehicle Seizure Hearing at 18:9-12 (held May 25, 2016)(Harada), filed October 16, 2017 (Doc. 67-32)("Seizure Tr.") ). See MSJ Response ¶ 65, at 13 (not disputing this fact). After the hearing, the City of Albuquerque filed "a forfeiture complaint in state court." MSJ ¶ 66, at 14 (citing City of Albuquerque v. One (1) 2014 Nissan 4DR Silver, D-202-CV-2016-03614, Forfeiture Complaint ¶ 4, at 1, filed June 10, 2016 (Second Judicial District Court, County of Bernalillo, State of New Mexico), filed in federal court October 16, 2017 (Doc. 67-33) ). See MSJ Response ¶ 66, at 13 (not disputing this fact). Harjo contested the forfeiture pro se, "and the City sent her a packet of discovery requests, including several whose relevance the City's 30(b)(6) witness could not explain." MSJ ¶ 66, at 14 (citing Rodgers Depo. at 57:7-58:14; Memorandum from Sue Postlethwait to Arlene Harjo at 10, 13 (dated August 3, 2016), filed October 16, 2017 (Doc. 67-34)("Forfeiture Discovery Req.") ). See MSJ Response ¶ 66, at 13 (not disputing this fact). The Forfeiture Discovery Req.'s cover letter, "authored by a paralegal whose salary is paid by forfeiture revenues, invited Arlene to sign a disclaimer giving up the vehicle." MSJ ¶ 66, at 14 (Interrog. Response at 15; Forfeiture Discovery Req. at 1). See MSJ Response ¶ 66, at 14 (not disputing this fact).

"Months later, and only after Arlene filed this case, the City dismissed its forfeiture complaint because it determined that the car was outside the city limits when it was seized." MSJ ¶ 67, at 14 (citing City of Albuquerque v. One (1) 2014 Nissan 4DR Silver, D-202-CV-2016-03614, Stipulated Dismissal of Plaintiff's Forfeiture Complaint ¶¶ 3-4, at 2, filed February 1, 2017 (Second Judicial District Court, County of Bernalillo, State of New Mexico), filed in federal court October 16, 2017 (Doc. 67-35)("Forfeiture Complaint") ). See MSJ Response ¶ 67, at 13 (not disputing this fact). "The police report for the seizure included a mile marker number, and the DWI Seizure Unit employee who conducted the background investigation could have used that information to determine if the seizure occurred inside city limits." MSJ ¶ 68, at 15 (citing Hernandez Depo. at 15:21-16:4). See MSJ Response ¶ 68, at 13 (not disputing this fact). "This employee has his entire salary paid by program revenues, and in 2016 he received $80,966 in program revenues as compensation." MSJ ¶ 68, at 15 (citing Interrog. Response at 13-14; Gardemal Decl. ¶¶ 32-35, at 13-15). See MSJ Response ¶ 68, at 15 (not disputing this fact). "The police officer who seized Arlene's car ... mentioned the mile marker number at the hearing, and the city attorney included the mile marker number in the complaint that he filed in state court." MSJ ¶ 69, at 15 (citing Seizure Tr. at 6:12-14 (Lafave); Forfeiture Complaint ¶ 4, at 1). See MSJ Response ¶ 69, at 13 (not disputing this fact). "Both the hearing officer and the city attorney could have determined that the seizure did not occur within city limits, if they had consulted a map." MSJ ¶ 69, at 15 (citing Rodgers Depo. at 44:16-25; id. at 54:24-55:1). See MSJ Response ¶ 69, at 13 (not disputing this fact).

"As a result of the City's actions, Arlene suffered damages." MSJ ¶ 70, at 15 (citing Harjo Decl. ¶¶ 24-27, at 5). See MSJ Response ¶ 70, at 13 (not disputing this fact). "Her car was damaged by sitting unused in the City's impound lot for an extended period, and Arlene also had to go without access to her car for eight months -- although she continued to make loan payments for a vehicle that she could not use." MSJ ¶ 70, at 15 (citing Harjo Decl. ¶¶ 24-26, at 5). See MSJ Response ¶ 70, at 13 (not disputing this fact). Harjo's lender "also added its attorney fees in the forfeiture action to the amount owned on her loan." MSJ ¶ 70, at 15 (citing Harjo Decl. ¶ 27, at 15). See MSJ Response ¶ 70, at 13 (not disputing this fact).

PROCEDURAL BACKGROUND

On August 31, 2016, Harjo filed suit in the Second Judicial District Court, County of Bernalillo, State of New Mexico, alleging that: (i) the Forfeiture Ordinance and forfeiture program violates the Fourteenth Amendment, because it creates an unlawful profit incentive for the City of Albuquerque and its employees; (ii) the Forfeiture Ordinance also violates the Fourteenth Amendment by withholding from car owners a meaningful opportunity to be heard; and (iii) that the New Mexico Forfeiture Act, N.M. Stat. Ann. §§ 31-27-1 to -11 ("NMFA"), preempts the City of Albuquerque's Forfeiture Ordinance. See Harjo v. City of Albuquerque, D-202-CV-2016-05395, Complaint for Declaratory and Injunctive Relief, Restitution, and Attorneys' Fees ¶¶ 72-90, at 16-20 (Second Judicial Court, County of Bernalillo, State of New Mexico), filed in federal court on October 6, 2016 (Doc. 1-1)("Complaint"). The City of Albuquerque removed the case on the basis of federal-question jurisdiction. See Notice of Removal ¶ 4, at 1-2, filed October 6, 2016 (Doc. 1). Harjo subsequently amended the Complaint, but alleges the same claims. See First Amended Complaint ¶¶ 89-110, at 20-24, filed February 1, 2017 (Doc. 23)("Amended Complaint"). In short, she alleges that: (i) the vehicle forfeiture program's self-funding violates due process, because it generates a personal and institutional incentive for forfeiture program officials to "vigorously pursue forfeitures" even where leniency might be appropriate, Amended Complaint ¶ 99, at 22; (ii) the City of Albuquerque's procedures deprive owners of their due process right to be meaningfully heard, see Amended Complaint ¶¶ 105-08, at 23-24; and (iii) the NMFA preempts the Forfeiture Ordinance, because the NMFA "places the burden on the government to prove that the property owner is guilty of an offense," Amended Complaint ¶ 91, at 20. See Amended Complaint ¶¶ 89-110, at 20-24.

The City of Albuquerque moved for a judgment on the pleadings to dismiss all claims, contending that: (i) there was no unconstitutional profit incentive, because the forfeiture officials did not directly financially benefit from vehicle forfeitures; (ii) an innocent-owner defense, placing the burden of proof on the owner, is not unconstitutional under Bennis v. Michigan, 516 U.S. 442, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996) ; and (iii) the Court should decline to exercise supplemental jurisdiction over the state law claim, but, if the Court is inclined to reach the state law claim, the NMFA does not preempt the Forfeiture Ordinance, because the NMFA applies to laws "that specifically apply the Forfeiture Act," which, according to the City of Albuquerque, the Forfeiture Ordinance does not. Defendant City's Motion for Judgment on the Pleadings and Memorandum in Support at 7, 16, filed June 5, 2017 (Doc. 44)("Motion for Judgment"). Before the Court ruled on the Motion for Judgment, Harjo filed the MSJ. See MSJ at 33.

The Court granted in part and denied in part the Motion for Judgment. See Memorandum Opinion and Order, 307 F.Supp.3d 1163, 1223-24 (D.N.M. 2018) (Doc. 92)(" MOO"). It concluded that City of Albuquerque "officials do not have a personal financial interest in prosecuting more cases, pressuring owners into unfavorable settlement of agreements, or seizing more vehicles, simply because the program funds itself." MOO, 307 F.Supp.3d at 1206. While the Court noted that the forfeiture program paid officials' salaries, the Court concluded that fact alone does not produce a personal profit incentive, because that fact does not demonstrate that "officials can increase their salary by prosecuting more cases or that their salary is decreased if they prosecute fewer cases." MOO, 307 F.Supp.3d at 1206 ("A profit incentive exists when the officials' level of enforcement can affect how much they are paid.")(citing Marshall, 446 U.S. at 249-50, 100 S.Ct. 1610 ); Connally v. Georgia, 429 U.S. 245, 250, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977) (per curiam) ).

The Court also concluded that the forfeiture program funding itself did not produce an unconstitutional institutional incentive to prosecute more cases. See MOO, 307 F.Supp.3d at 1206-08. It reasoned, in part, that there is no institutional pressure to prosecute because excess funds, under the Forfeiture ordinance, "must be allocated to other programs." MOO, 307 F.Supp.3d at 1207 (citing ROA §§ 7-6-5(E), 7-9-3(F), 7-14-5(F) ). Thus, the Court said, "additional penalties assessed do not lead to an increase in the amount of funds the forfeiture program has to spend, so prosecutors, judges, or police officers would not feel pressure to prosecute more cases, find more forfeitures, or seize more cars to secure additional funding."

MOO, 307 F.Supp.3d at 1207. The Court also reasoned that there is no institutional pressure to prosecute, because "officials involved in the vehicle forfeiture program exert little control over how much money is budgeted ... or how that money is spent." MOO, 307 F.Supp.3d at 1207. Instead, the power to budget and allocate funds to the forfeiture program rested with the City of Albuquerque's Mayor and City Council, so it did not follow that forfeiture program officials overzealously seizing, prosecuting, and raising more money one year would lead to additional funding the following year. See MOO, 307 F.Supp.3d at 1206-08. Accordingly, the Court concluded that there is no institutional incentive to prosecute. See MOO, 307 F.Supp.3d at 1206-08.

Despite that ruling, the Court held that the forfeiture program plausibly violated due process, because the forfeiture program not only funded itself, but that it is "dependent on those funds." MOO, 307 F.Supp.3d at 1208. Accordingly, the Court concluded that, if forfeiture program revenues dropped to certain levels, it is plausible that the City of Albuquerque might cut forfeiture program officials' pay or fire them. See MOO, 307 F.Supp.3d at 1208-09. Under Connally v. Georgia, "even a small financial gain achieved through official action implicate[s] due process," so the Court determined that Harjo had plausibly stated a claim on this ground. MOO, 307 F.Supp.3d at 1208-09 (citing Connally v. Georgia, 429 U.S. at 250, 97 S.Ct. 546 ). In a similar vein, the Court ruled that Harjo has plausibly stated an improper incentive claim by alleging that some forfeiture program officials gained the private use of luxury vehicles through enforcing the Forfeiture Ordinance. See MOO, 307 F.Supp.3d at 1209-10.

The Court denied in part the Motion for Judgment to the extent it contended that Harjo has not stated a procedural due process claim. See MOO, 307 F.Supp.3d at 1209-15. It concluded that the Forfeiture Ordinance, which requires "the vehicle owners to prove their innocence" plausibly violated due process under Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See MOO, 307 F.Supp.3d at 1209-13. It concluded that Harjo has a significant interest in her car, the burden of proof causes a serious risk of erroneous deprivation, and the City of Albuquerque's interest in seizing the car from owners did not outweigh the previous considerations, so Harjo had stated a plausible procedural due process claim. See MOO, 307 F.Supp.3d at 1210-13. The Court also concluded, however, that Harjo had not stated a procedural due process claim vis-à-vis the fees, which the City of Albuquerque collects to store the seized the vehicles, primarily because the risk of an erroneous deprivation was slight. See MOO, 307 F.Supp.3d at 1213-15.

Finally, the Court dismissed the state law claim without prejudice. See MOO, 307 F.Supp.3d at 1215-23. Although concluding that the "NMFA preempts the City of Albuquerque's forfeiture ordinance," it also ruled that the "issue is novel as it is both new and notable"; no New Mexico appellate court has considered the issue, and the preemption ruling greatly "implicate[s] the power local authorities have vis-à-vis the state." MOO, 307 F.Supp.3d at 1220-23. Because the issue is novel, the Court declined to exercise supplemental jurisdiction, see 28 U.S.C. § 1367(c)(1), and dismissed the claim without prejudice, see MOO, 307 F.Supp.3d at 1220-24.

1. MSJ.

Harjo now moves for summary judgment on her claims that the forfeiture program creates an unlawful profit incentive and that the Forfeiture Ordinance violates procedural due process. See MSJ at 1. Regarding the unconstitutional-profit-incentive claim, she argues that, because "the revenues generated by the forfeiture action[s] are used to pay the expenses of the forfeiture program," both "enforcement personnel and the City's hearing officers ... are subject to an institutional financial incentive because of their involvement with the City's self-funding forfeiture program, while enforcement personnel are also subject to a direct, personal incentive, as their salaries are paid with program revenues." MSJ at 16. According to Harjo, those "financial incentive[s] -- both institutional and personal -- violate[ ] due process." MSJ at 16.

She contends that, for three reasons, "the retention of forfeiture revenues ... gives rise to a 'realistic possibility that [officials'] judgment will be distorted." MSJ at 18 (quoting Marshall, 446 U.S. at 250, 100 S.Ct. 1610 ) (brackets in MSJ). First, she argues that the forfeiture program depends on the "maintenance of a high level of penalties." MSJ at 18. Second, she argues that "the City budgets for future forfeiture revenues and evaluates the program based on the amount of revenue that it generates." MSJ at 18. Third, she concludes that the prior two realities affect "city officials who exercise discretion to return or forfeit property, including city attorneys who have their entire salaries paid by forfeiture revenues and a hearing officer whose docket is largely made up of forfeiture cases." MSJ at 18.

Harjo argues that the undisputed facts support her contention that the forfeiture program depends on a high level of penalties. See MSJ at 19. First, she argues that the forfeiture program's "settlements, auctions, and related fees make up a full 87% of revenues associated with the program," including "major expenses." MSJ at 19-20 (citing Gardemal Decl. ¶¶ 2-3, 25-26, 30, 32-34, 44-48 at 1-2, 9-10, 12-15, 18-20; Cutler-Padilla Depo. at 22:5-15; id. at 25:13-23; id. at 26:8-20; id. at 29:16-22). Next, Harjo contends that it is undisputed that, "if forfeiture revenues were no longer able to cover those expenses, it would become necessary to find room elsewhere in the City's already thinly-stretched budget." MSJ at 20 (citing Thompson Depo. at 139:8-20; id. at 149:14-20). Third, she argues, that, according to the City of Albuquerque's Budget Analyst, a drop in forfeiture revenues would result in a drop in expenditures, including a possible "cut [in] personnel from the program." MSJ at 20 (citing Cutler-Padilla Depo. at 14:12-19; id. at 77:5-25).

Harjo asserts that the undisputed facts also demonstrate that the revenues generated controls how much the City of Albuquerque allocates to the forfeiture program. See MSJ at 20-23. According to Harjo, the City Council, in practice, "appropriates the program's budget based on projected forfeiture revenue." MSJ at 21 (citing Gardemal Decl. ¶¶ 21-22, 58-61, at 8, 25-26; Thompson Depo. at 54:20-22; id. at 134:21-136:23; Cutler-Padilla Depo. at 17:12-18:8). She adds that "[a]ctual spending then adjusts to reflect actual forfeiture revenue." MSJ at 21-22 (citing Thompson Depo. at 136:2-23)("If more revenue comes in, then yes, our expenditures can increase.... If less revenue comes in, then we don't -- we have less availability to expend funds."). According to Harjo, the increase in spending, which comes from an increase in revenue generation, funds more than just "the program's necessary expenses," and is used "to pay for bonus equipment and supplies -- purchases the City might not otherwise be able to afford." MSJ at 22 (citing Gardemal Decl. ¶¶ 52-56, at 21-24). She also argues that, under the Forfeiture Ordinance, the forfeiture program and its officials are assured that they will "benefit from the revenue" generated, because the Forfeiture Ordinance "provides that revenue must be used first to pay program expenses and then to fund related DWI enforcement efforts." MSJ at 21 (citing ROA § 7-6-5(E) ). Harjo contends that the City "ramps up" the incentives to raise more forfeiture funds in other ways as well: (i) "[t]he City's annual budget includes 'performance measures' setting targets for the number of seizures, the number of vehicles returned, via settlement, and the amount of money raised at auction"; (ii) "[e]very annual budget ... includes the program's actual performance ... as well as that last year's goals"; (iii) "the program tracks ... monthly performance"; (iv) "[a]nnual performance evaluations for program personnel list 'increas[ing] the amount of revenue generated from Seized vehicles"; and (v) "the City's 2016 budget openly list[s] as an 'accomplishment[ ]' that the program 'generat[ed] $471,000 in proceeds." MSJ at 22-23 (citing 2013 Budget at 192; 2014 Budget at 185; 2015 Budget at 183; 2016 Budget at 181; DWI Seizure Unit Statistics; Rodgers Depo. at 69:12-18; id. at 70:3-73:11; D. Rivera Depo. at 20:9-13; id. at 22:23-23:8; id. at 29:13-21; id. at 30:7-31:3; L. Rivera Depo. at 21:18-22:14; id. at 55:17-22; Hernandez Depo. at 30:5-8; id. at 30:23-25; L. Rivera Eval. at 1; Hernandez Eval. at 1).

Harjo asserts that there is also a personal financial incentive on the personnel level. See MSJ 23-28. She argues that City of Albuquerque attorneys "have latitude to set the financial consequences associated with vehicle seizures" through setting settlement terms, so, according to Harjo, those attorneys must be free from any bias. MSJ at 24 (citing Rodgers Depo. at 19:20-21:25; id. at 23:5-25:25; id. at 36:3-21; D. Rivera Depo. at 42:13-43:6; id. at 62:5-63:1; L. Rivera Depo. at 35:4-10). According to Harjo, however, those City of Albuquerque attorneys have a financial incentive to boost revenues, because those attorneys know that the forfeiture revenues pay their "entire annual salaries ... plus benefits like health insurance." MSJ at 24-25 (citing Gardemal Decl. ¶ 34, at 14-15; Cutler-Padilla Depo. at 26:8-20; id. at 29:16-22; Locher Email at 1; Thompson Email at 1). Harjo argues that the City of Albuquerque attorney who prosecuted her case also reaped the forfeiture program's revenues, as he earned $70,776 from the forfeiture program during the fiscal year in which he prosecuted Harjo's case and he earned a $9,500 raise that year "to be paid for by forfeiture revenues." MSJ at 25 (citing Interrog. Response at 15; Hernandez Memo. at 1).

She contends that other forfeiture program enforcement personnel also have an unconstitutional personal incentive. See MSJ at 26. According to Harjo, enforcement personnel "are responsible for conducting the only investigation following a seizure, including verifying ... [whether] the seizure falls within city limits." MSJ at 26 (citing D. Rivera Depo. at 45:16-46:1). Harjo argues that, because the forfeiture program revenue funds these officials' salaries, there is an unlawful incentive for those enforcement personnel to be less diligent with their investigations, as a poor investigation, especially about whether the car is seized within city limits, could result in "the City making a profit -- even though [the car] was not subject to forfeiture." MSJ at 26.

She argues that hearing officers suffer from the same personal unconstitutional incentive. See MSJ at 27. According to Harjo, "[t]he hearing officer" who adjudicated her case "is aware of the importance of forfeiture revenues to the forfeiture program," and, also according to Harjo, although that "hearing officer is not formally part of the forfeiture program, his job is still inextricably bound up with the program." MSJ at 27 (citing Forfeiture Conf. at 1:20:30 (Harada); id. at 2:33:05 (Harada) ). Harjo argues that seventy-seven percent of the hearings that her hearing officer holds are related to the Forfeiture Ordinance, and, according to Harjo, "[if] the program were to go away -- for instance, because it was financially unsustainable -- the hearing officer's stream of cases would dry up as well," impacting the "hearing officer personally." MSJ at 27-28 ("When the City shut down its red light ticketing program in 2013, the City cut six positions from the administrative hearing office as a result.")(citing Third Interrog. Response at 3; 2013 Budget at 137).

Harjo argues that the forfeiture program also violates procedural due process, because the "City places the burden on property owners to prove their own innocence." MSJ at 28. She argues that Nelson v. Colorado controls this case and points the Court to holding unconstitutional the Forfeiture Ordinance. See MSJ at 29 ("If people who have previously been convicted of a crime cannot be required to prove their own innocence, then people who have never been convicted of anything certainly cannot be put to such a burden."). Accordingly, Harjo asserts that the Court should invalidate the Forfeiture Ordinance. See MSJ at 32.

2. The MSJ Response.

The City of Albuquerque responds. See MSJ Response at 1. The City of Albuquerque argues that "the fact that forfeiture programs generate financial dividends cannot, in itself, violate the Constitution," otherwise "no forfeiture program" -- of which there are many -- "would survive constitutional challenge." MSJ Response at 16. The City of Albuquerque contends that hearing officers are not paid with forfeiture revenues, do not have "any responsibility for generating revenue," have no "control over the City's budget," and do not "have any decision-making authority as to how much money will be allocated for their salaries." MSJ Response at 17. The City of Albuquerque acknowledges that hearing officers may be aware of how important forfeiture revenues are, but it argues that such knowledge does not translate into an improper incentive. See MSJ Response at 17. Thus, according to the City of Albuquerque, hearing officers cannot have an unconstitutional incentive to generate forfeiture profits. See MSJ Response at 17.

The City of Albuquerque also argues that the hearing officers, prosecutors, and other forfeiture program employees have no direct, pecuniary interest in generating forfeiture program revenue. See MSJ Response at 18. It contends that "[t]here is no evidence any program employees receive compensation above their regular salary if the forfeiture program generates more revenue." MSJ Response at 18. See id. ("[S]alaries are not correlated to revenue."); id. at 20 ("[W]hile Plaintiff points to a significant decline in revenue in recent years, she offers no evidence of a corresponding cut in personnel or in salaries."). The City of Albuquerque argues, accordingly, that there is no impermissible incentive for any of those officials. See MSJ Response at 24.

The City of Albuquerque asserts that there is also no institutional incentive to prosecute, because "the City is able to access its general fund to subsidize the forfeiture program." MSJ Response at 19. The City of Albuquerque argues that no one has incentivized forfeiture program officials to "act more zealously in enforcing the forfeiture ordinance in light of decreasing revenues." MSJ Response at 20. It contends that evidence of "bonus equipment and supplies" do not demonstrate an institutional bias, because such equipment and supplies do not personally benefit forfeiture program officials. MSJ Response at 21-22. According to the City of Albuquerque, evidence of "annual budgeting targets" does not demonstrate an institutional bias, because "[e]stimating revenue, tracking performance, and comparing actual performance among various fiscal years is part of any normal budgeting process." MSJ Response at 23 ("The fact that employees report or review budgeting metrics routinely also is a necessary part of any budgeting process."). It contends similarly that, although employee evaluations have "form language" about seizure or revenue targets, "there is no evidence that employees were either charged with generating revenue or evaluated on it." MSJ Response at 23.

The City of Albuquerque argues that its attorneys' and other enforcement officials' discretion either to prosecute cases or conduct investigations do not demonstrate an unconstitutional bias. See MSJ Response at 24. It argues that, even if city attorneys have discretion to settle cases, without evidence that those city attorneys' salaries are tied to revenue generation, "their prosecutorial discretion" does not violate the Constitution, nor is there any evidence that any prosecutor abused his or her discretion to generate revenue. MSJ Response at 24. The City of Albuquerque avers that enforcement officials' power to perform a "lackluster investigation" does not amount to a constitutional claim, because there is no evidence that those officials' salaries are linked to revenue generated. MSJ Response at 24.

The City of Albuquerque argues that the forfeiture program does not violate