OPINION
{1} In this case, we consider whether City of Albuquerque Ordinance C/S 0-06-21, the Assisted Outpatient Treatment Ordinance (the Ordinance), is preempted by state law. First, though, we must consider whether Plaintiffs, Jane Does 1 through 3, John Doe 1, and Protection and Advocacy System (P & A), have standing to challenge the Ordinance. We agree with the district court that Plaintiffs have standing and that the Ordinance is preempted by the State Mental Health and Developmental Disabilities Code (the Code), NMSA 1978, §§ 43-1-1 to -25 (1976, as amended through 2007), and the Mental Health Care Treatment Decisions Act (the Act), NMSA 1978, §§ 24-7B-1 to -16 (2006). Thus, we affirm the district court’s declaratory judgment and permanent injunction prohibiting the enforcement of the Ordinance.
BACKGROUND
I. The Ordinance
{2} The Ordinance became effective on October 6, 2006. It states:
The City Council finds that there are mentally ill persons who are capable of living in the community with the help of family, friends and mental health professionals, but who, without routine care and treatment, may relapse and become violent, suicidal or require hospitalization. The City Council further finds that there are mentally[ ]ill persons who can function well and safely in the community with supervision and treatment, but who without such assistance, will relapse and require long periods of hospitalization. The City Council further finds that some mentally ill persons, because of their illness, have great difficulty taking responsibility for their own care, and often reject the outpatient treatment offered to them on a voluntary basis. Family members and caregivers often must stand by helplessly and watch their loved ones and patients decompensate.
Albuquerque, N.M., Ordinаnce C/S 0-06-21, § 1 (Oct. 6, 2006).
{3} The Ordinance further indicates that the City Council believed that “assisted outpatient treatment” would be an “[effective mechanism[ ]” to prevent the mentally ill from requiring hospitalization. Id. The Ordinance defines the following terms:
ASSISTED OUTPATIENT TREATMENT. Court ordered services prescribed to treat a person’s mental illness and to assist a person in living and functioning in the community and/or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in harm to the person or another.
ASSISTED OUTPATIENT TREATMENT PROGRAM. A program that arranges and coordinates the provision of assisted outpatient treatment, including monitoring treatment compliance by patients, evaluating and addressing the conditions or needs of assisted outpatients and ensuring compliance with court orders.
MENTAL ILLNESS. A substantial disorder of thought, mood or behavior that afflicts a person and that impairs that person’s judgment but does not mean developmental disability.
SUBJECT. A person who is alleged in a petition to the court to meet the criteria for [ajssisted [ojutpatient [tjreatment.
Id. § 3.
{4} The Ordinance allows certain people to file “[a] petition for an order authorizing assisted outpatient treatment” in the Second Judicial District Court. Id. § 5(A). Those people include, but are not limited to, the subject’s parent; the subject’s spouse, adult sibling, or adult child; the director of a hospital where the subject is hospitalized; the director of an organization, agency, or home where the subject resides or from which the subject receives treatment; a qualified psychiatrist; а provider of social services; or the mayor. Id. Further:
The petition shall be accompanied by an affidavit from a physician, who shall not be the petitioner, and shall state that:
(1)The physician has personally examined the subject no more than ten days prior to the filing of the petition, that the physician recommends assisted outpatient treatment for the subject and that the physician is willing and able to testify in person or by telephone at the hearing on the petition; or
(2)No more than ten days prior to the filing of the petition, the physician or the physician’s designee has made appropriate attempts to elicit the cooperation of the subject but has not been successful in persuading the subject to submit to an examination, that the physician has reason to suspect that the subject meets the criteria for assisted outpatient treatment and that the physician is willing and able to examine the subject and testify at the hearing on the petition.
Id. § 5(C).
{5} Under the Ordinance, a hearing shall be held on the petition. See id. § 6(B). If the subject has refused to be examined by a physician, then at the hearing,
the court may request that the [sjubject consent to an examination by a court appointed physician. If the [sjubject does not consent to an examination and the court finds that there are reasonable grounds to believe that the allegations in the petition are true, the court may order that a law enforcement officer take the [sjubject into custody and transport the [sjubject to a provider fоr examination by a physician. The examination may be performed by the physician whose affidavit accompanied the petition. No [sjubject taken into custody pursuant to this section shall be detained longer than seventy-two hours.
Id. § 6(E).
{6} In order for the court to order assisted outpatient treatment, the court must find by clear and convincing evidence that the subject meets the following criteria.
(1) Is eighteen (18) years of age or older;
(2) Is suffering from a mental illness;
(3) Is unlikely to survive safely in the community without supervision, based on a clinical determination by a qualified mental health care professional;
(4) Has a history of lack of compliance with treatment for mental illness that has:
(a) prior to the filing of the petition, at least twice within the last thirty-six months[,] been a significant factor in necessitating hospitalization or receipt of services in a forensic or other mental health unit of a state correctional facility or a local jail facility, not including any period during which the person was hospitalized or incarcerated immediately preceding the filing of the petition; or
(b) prior to the filing of the petition, resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months, not including any period during which the person was hospitalized or incarcerated immediately preceding the filing of the petition; and
(5) Is unlikely, as a result of mental illness, to voluntarily participate in the recommended treatment pursuant to the treatment plan; and
(6) In view of the person’s treatment history and current behavior, is in need of assisted outpatient treatment in order to prevent a relapse or deterioration that would be likely to result in serious harm to himself or another person; and
(7) Will likely benefit from assisted outpatient treatment; and
(8) Is located within the municipal limits of the City.
Id. § 4(A).
{7} The examining physician must provide the court with a proposed written treatment plan. Id § 7(A)(1). In developing the treatment plan, the physician “shall take into account, if existing, an advance directive,” as well as allow the subject, the treating physician, and, upon request of the subject, an individual significant to the subject to have an opportunity to actively participate in the development of the plan. Id. § 7(B).
{8} In making its final disposition based on the petition, the court is:
authorized to order the [sjubject to receive [ajssisted [ojutpatient [treatment for a period not to exceed six months. In its order, the court shall state the [ajssisted [ojutpatient [treatment that the [sjubject is to receive. A court may order the [s]ubjeet to self-administer psychotropic drugs or accept the administration of such drugs by an authorized professional as part of an assisted outpatient treatment program. The order may specify the type and dosage range of such psychotropic drugs and shall be effective for the duration of the [s]ubjeet’s assisted outpatient treatment. Assisted outpatient treatment may include one or more of the following categories:
(1) medication;
(2) periodic blood tests or urinalysis as medically necessary to determine compliance with prescribed medications;
(8) individual or group therapy;
(4) day or partial day programming activities;
(5) educational and vocational training or activities;
(6) alcohol or substance abuse treatment and counseling and periodic tests for the presence of alcohol or illegal drugs for persons with a history of alcohol or substance abuse;
(7) supervision of living arrangements; or
(8) any other services prescribed to treat the person’s mental illness and to either assist the person in living and functioning in the community or to help prevent a relapse that may reasonably be predicted to result in suicide or the need for hospitalization; however, electro-convulsive therapy shall never be a form of treatment allowed by this ordinance.
Id. § 8(B).
{9} If an individual refuses to comply with the court-ordered treatment, then that person “may be retained for observation, care, treatment and further examination in the hospital for up to seventy-two hours to permit a physician to determine whether the patient has a mental illness and is in need of continued involuntary retention for care and treatment.” Id. § 11(A). In order for such a detention to occur, a physician must determine that:
(1) the patient has failed or has refused to comply with the treatment ordered by the court;
(2) efforts were made to obtain compliance;
(3) the patient may be in need of involuntary admission to a hospital for immediate observation, care and treatment; and
(4) if the patient refuses to take medications or refuses to take or fails a blood test, urinalysis or alcohol or drug test as required by the court order, the physician may consider such refusal or failure when determining whether the assisted outpatient is in need of an examination to determine whether the patient has a mental illness for which hospitalization is necessary.
Id. A “provider” may transport the individual meeting the aforementioned criteria to an authorized hospital for observation, care, treatment and further examination, or a physician may “request the aid of a law enforcement officer to take the patient into custody and accompany the physician in transporting the patient to the hospital____A law enforcement officer may carry out a provider’s directive pursuant to this section unless otherwise prohibited by law.” Id. § 11(B), (C).
{10} The Ordinance also addresses the representation of individuals who are the subject of a petition.
(A) Notice of a proceeding under this Ordinance shall be served on the [sjubject of the petition, [P & A], and the Public Defender’s Office Mental Health Unit if applicable.
(B) The [sjubject shall be represented by counsel at all stages of the proceedings. When a subject has not retained his own attorney and is unable to do so, the court shall appoint counsel to represent him. When appointing counsel, the court shall give preference to nonprofit organizations offering representation to mentally ill and developmentally disabled persons.
Id. § 6.
II. The Proceedings
{11} Before the Ordinance went into effect, Plaintiffs filed a complaint for declaratory and injunctive relief under the Declaratory Judgment Act, NMSA 1978, §§ 44-6-1 to -15 (1975). Plaintiffs requested the district court to declare that the Ordinance is preempted by the Code and the Act, and that, in enacting the Ordinance, the City exceeded the power granted to it under Article X, Section 6 of the New Mexico Constitution. Plaintiffs further requested the court to declare that the Ordinance violated other clauses of the New Mexico Constitution, including the Equal Protection Clause (Article II, Section 18), the substantive component of the Due Process Clause (Article II, Sections 4 and 18), the procedural component of the Due Process Clause (Article II, Section 18), as well as the right to be free from unreasonable searches and seizures (Article II, Section 10). Plaintiffs requested a permanent injunction enjoining the City from enforcing the Ordinance in its entirety.
{12} The City moved to dismiss the action arguing that Plaintiffs lacked standing. Plaintiffs filed a response, under seal, with affidavits attached by each of the four individual Plaintiffs. The affidavits stated facts relating to the criteria of the Ordinance. Specifically, each individual Plaintiff averred that he or she is eighteen or older, lives in Albuquerque, has been diagnosed with a mental illness and has a history of being non-compliant with prescribed treatment. Jane Doe 1 stated: “Currently, I sometimes choose not to take my prescribed medications and choose not to comply with other aspects of my recommended treatment plan.” Each individual Plaintiff stated that he or she believed that persons specifically authorized by the Ordinance to petition for an order for assisted outpatient treatment may want him or her to comply with treatment with which he or she does not agree. Jane Doe 1 stated that her history of non-compliance with the recommendatiоns of her treatment providers has been a significant factor in necessitating psychiatric hospitalization four times within the past thirty-six months, as well as having resulted in serious self-injurious violent behavior numerous times within the past forty-eight months. Each individual Plaintiff stated that he or she has engaged in at least one act or threat of serious self-injurious behavior in the past forty-eight months. All four individual Plaintiffs averred that based on their history of mental illness, they may be deemed to be unlikely to survive safely in the community without supervision by a qualified mental health care professional, unlikely to voluntarily participate in a recommended treatment plan, in need of assisted outpatient treatment in order to prevent a relapse or deterioration that would be likely to result in serious harm to him — or herself or others, and likely to benefit from assisted outpatient treatment.
{13} Each individual Plaintiff also alleged that if the Ordinance were to take effect he or she would suffer irreparable harm. Each stated that he or she believed they would suffer a threat of irreparable injury if he or she became the subject of a petition for assisted outpatient treatment, including being taken into custody, being detained involuntarily, and being subjected to forced medication, blood and urine testing, and other invasive measures without consent. Does 1 through 3 further state that, since the passage of the Ordinance, they experienced an exacerbation of symptoms, including anxiety, depression, sleep difficulties, loss of appetite, stress-related headaches, crying spells, difficulty concentrating, nausea, feelings of shame and stigmatization, difficulty staying organized, and agitation.
{14} Additionally, Jane Doe 1 indicated that she completed a psychiatric advance directive in accordance with the Act, which detailed her mental health treatment choices and specified instructions in the event she should experience a future period of incapacity. She further stated that if she were the subject of a petition under the Ordinance she “would face the risk of being court-ordered to comply with a treatment plan that may be contrary to [her] expressf] wishes, as set forth in [her] psychiatric advance directive.”
{15} The district court addressed both the City’s motion to dismiss and Plaintiffs’ request for a permanent injunction on October 10, 2006. The court denied the City’s motion to dismiss and concluded that all Plaintiffs have standing and granted Plaintiffs’ request for a permanent injunction on the ground that the Ordinance is preempted by the Code and the Act. The district court did not address Plaintiffs’ other constitutional arguments. The City of Albuquerque appeals.
DISCUSSION
{16} The City argues that (1) neither the individual Plaintiffs nor P & A has standing to sue and (2) the Ordinance is not preempted by the Code or the Act. Applying ACLU v. City of Albuquerque (ACLU II),
I. Standard of Review for Determining Issues of Standing
{17} Whether a party has standing to bring a claim is a question of law which we review de novo. Forest Guardians,
For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. At the same time, it is within the trial court’s power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of [the] plaintiffs standing. If, after this opportunity, the plaintiffs standing does not adequately appear from all materials of record, the complaint must be dismissed.
Worth v. Seldin,
II. Individual Plaintiffs Have Standing
{18} Standing is a judicially created doctrine designed to “insure that only those with a genuine and legitimate interest can participate in a proceeding.” De Vargas Sav. & Loan Ass’n v. Campbell,
must demonstrate the existence of (1) an injury in fact, (2) a causal relationship between the injury and the challenged conduct, and (3) a likelihood that the injury will be redressed by a favorable decision. In addition, the interest sought to be protected must be arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.
Forest Guardians,
{19} The real debate between the parties in this case on individual standing is whether the individual Plaintiffs have demonstrated the first element of standing, an injury in fact. We briefly address the second two elements first, and then we turn our attention to the first element. It is clear to us that if the individual Plaintiffs can establish the alleged injury from being subjected to the Ordinance when it is preempted by state law, or that the Ordinance contains provisions which violate any of the individual Plaintiffs’ constitutional rights, then there is a causal relationship between the passage of the Ordinance and the injury. Therefore, if the first element is met, the second element is met in this case. As for the third element, we also believe it is clear that if we affirm the permanent injunction against enforcing the Ordinance, then the alleged injuries will be redressed. We thus now turn to the issue of whether Plaintiffs have established an injury in fact.
{20} An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Forest Guardians,
When contesting the constitutionality of a criminal statute, it is not necessary that [the plaintiff] first expose himself [or herself] to actual arrest or prosecution to be entitled to challenge [the] statute that he [or she] claims deters the exercise of his [or her] constitutional rights. When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he [or she] should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.
Id. ¶ 9 (alterations in original) (internal quotation marks omitted) (quoting Babbitt v. United Farm Workers Nat’l Union,
{21} The Court in ACLU II continued to indicate that a credible threat of prosecution was a critical consideration.
{22} Significantly, the ACLU II Court also considered the question of imminence in distinguishing ACLU I. The Court reaffirmed ACLU I and stated the rule that a plaintiff can demonstrate an injury by showing that “he [or she] is imminently threatened with injury, or, put another way, that he [or she] is faced with a real risk of future injury as a result of the challenged action or statute.” Id. ¶ 11 (internal quotation marks and citations omitted). The Court stated “[t]he plaintiffs in ACLU I could demonstrate that they themselves were highly likely to be arrested for violating the curfew if they stayed out past the time spеcified in the ordinance, simply by virtue of the fact that they were of a certain age.” ACLU II,
{23} After considering ACLU I and ACLU II, we believe this case is more analogous to ACLU I. Here, the named individual Plaintiffs belong to a distinct group of individuals who have been diagnosed with a mental illness and who meet the criteria of Section 4 of the Ordinance. This certainly is as distinct a group as the teenage plaintiffs in ACLU I. Additionally, here, as in ACLU I, Plaintiffs challenged the Ordinance on the grounds that it is preempted by state law, and that it, among other things, violates their rights to be free from unreasonable searches and seizures. Given the similarities between ACLU I and the case at hand, we believe we are bound to apply ACLU I.
{24} The City argues, however, that there is an important distinction between the case at hand and ACLU I. The City argues that the Ordinance at issue in ACLU I did not require a “due process hearing before an arrest or detention,” whereas under the Ordinance “no imminent threat of detention arises without the benefit of a hearing, at which time all constitutional and preemption issues can be raised.” The City is correct and, in fact, a hearing is required before application of the Ordinance in any way at all. See Albuquerque, N.M., Ordinance C/S 0-06-21, § 6. While the City accurately points to a distinction between the circumstances in ACLU I and the circumstances here, we are not persuaded that the circumstances to which the City points had any bearing on the reasoning of the Court in ACLU I. The concern in ACLU I was with subjecting an individual to judicial proceedings when the activity sought to be prohibited by the defendant was protected by state law.
{25} Further, while not a criminal ordinance like the curfew ordinance in ACLU I, the Ordinance has a provision for taking an individual into custody if the individual has refused to be examined by a physician, as well as a provision for taking an individual into custody for an evaluation if the individual has refused to comply with court-ordered treatment and “may be in neеd of involuntary admission to a hospital for immediate observation, care and treatment!/]” Albuquerque, N.M., Ordinance C/S 0-06-21, §§ 6(E), 11(A)(3). Thus, as in ACLU I, this ease raises a significant liberty interest involving the constitutional right to be free from an unreasonable seizure. See id. § 11(A)(1), (4). Because the Ordinance in this case is capable of curtailing an individual’s constitutional interest in being free from an unreasonable deprivation of liberty just as significantly as the ordinance did in ACLU I, we are bound to follow the reasoning therein.
{26} Applying ACLU I to the case at hand, and accepting the statements in the affidavits as true, each Plaintiff provided sufficient statements to demonstrate that he or she falls within the criteria of the Ordinance and thereby demonstrated a credible threat of application of the Ordinance. See ACLU I,
{27} Given that the individual Plaintiffs have sufficiently alleged a credible threat, they have thereby alleged an imminent injury or risk of injury stemming from the enactment of the Ordinance, assuming the Ordinance is problematic, to demonstrate standing. In ACLU I, the plaintiffs argued that “their previously[ jlawful activities during curfew hours [were] curtailed by the [c]urfew [ordinance.” Id. ¶ 8 (internal quotation marks omitted). Similarly, here, the individual Plaintiffs alleged that an activity which is specifically protected by the Code, Section 43-l-15(A), and by the Act, Section 24-7B-4(A), namely, the right of a person, with capacity, to refuse medication is not protected by the Ordinance, under which a cоurt order can require a person with capacity to take medication. Albuquerque, N.M., Ordinance C/S 0-06-21, § 8(B)(1). In other words, Plaintiffs alleged that the previously lawful refusal of treatment is, under a court order requiring medication pursuant to the Ordinance, no longer lawful. Thus, given a credible threat of application of the Ordinance, we conclude that the individual Plaintiffs have sufficiently demonstrated standing to challenge the Ordinance.
{28} We note that the individual Plaintiffs also vigorously alleged standing based on mental distress they experienced directly related to the passage of the Ordinance. The individual Plaintiffs asserted that “they are experiencing current harm because the [0]r-dinance’s passage has caused exacerbation of the symptoms of their mental illnesses. These symptoms are affecting their lives now, on a day-to-day basis.” (Emphasis omitted.) While we believe these allegations indicate the individual Plaintiffs may be experiencing an injury in some sense, the interest which a plaintiff alleges is violated must be one that is “entitled to some legal protection.” John Does I through III v. Roman Catholic Church of the Archdiocese of Santa Fe, Inc.,
III. Organizational Standing
{29} The organization arguing that it has standing in this case, P & A, is a unique organization. Groups such as P & A are defined and, at least partially, funded by Congress. See 42 U.S.C. §§ 10801 to 10851 (1986, as amended through 2000). The groups or “systems” are state-based, can be private or public entities, see § 10805(c)(1)(B), and were created “to protect and advocate the rights of individuals with mental illness.” § 10805(a). In creating protection and advocacy systems for the advocacy of individuals with mental illness:
(a) The Congress finds that—
(1) individuals with mental illness are vulnerable to abuse and serious injury;
(4) State systems for monitoring compliance with respect to the rights of individuals with mental illness vary widely and are frequently inadequate.
(b) The purposes of this chapter are—
(1) to ensure that the rights of individuals with mental illness are protected; and
(2) to assist States to establish and operate a protection and advocacy system for individuals with mental illness which will-
(A) protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes; and
(B) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred.
§ 10801. Thus, Congress vested protection and advocacy systems with “the authority to ... pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State}.]” § 10805(a)(1)(B).
{30} In addition to individuals, we have held that an association (also referred to as an organization) may have standing.
[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Forest Guardians,
{31} Also in ACLU II, the Supreme Court reiterated the factors applied in NARAL. ACLU II,
the following three criteria in determining the right of litigants to bring actions on behalf of third parties:
The litigant must have suffered an injury in fact, thus giving him or her a sufficiently concrete interest in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests.
{32} The special nature of protection and advocacy systems has been considered by various courts in determining whether the systems have standing in order to advance the claims of their members, or, as sometimes called, constituents. In particular, all parties in the present case rely on the case of Doe v. Stincer,
{33} Following the same line of reasoning as that in Hunt and relating to the Apple Advertising Commission, Stincer held that the protection and advocacy system could sue on behalf of its constituents if it met the requirements for organizational standing. Stincer,
{34} In line with the reasoning of Stincer, we see no bar, nor does the City argue one, to allowing standing even though P & A is an organization with constituents rather than members. In the same vein, and considering the second prong of the Forest Guardians test for organizational standing first, it is clear that the interests sought to be protected by P & A in this case are germane to the organization’s purpose: “to ensure that the rights of individuals with mental illness are protected” and to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are recеiving care or treatment in the State[J” §§ 10801(b)(1), 10805(a)(1)(B). Thus, P & A has satisfied the second prong of the Forest Guardians test to establish organizational standing.
{35} The aspect of organizational standing contested by the City is whether P & A has met the first prong of the Forest Guardians test, that is, alleging that one of its constituents would otherwise have standing to sue in his or her own right. The City cites Stincer and two other cases for the proposition that protection and advocacy groups have been denied standing if they have failed to show that their constituents have standing. Stincer,
{36} The cases upon which the City relies are distinguishable. In Stincer, the court held that the protection and advocacy system failed to allege facts showing that one of its constituents had standing to sue. Stincer,
{37} In the other two cases upon which the City relies, either there had been named individual plaintiffs, but those individuals’ claims had become moot because the individuals received the remedy requested (in Houston), or no individuals were ever identified or named as plaintiffs (Tennessee Protection & Advocacy, Inc.). Houston,
{38} Finally, as to the third Forest Guardians prong,
{39} Additionally, we believe that P & A has demonstrated the existence of the factors applied by our Supreme Court in NARAL. See NARAL,
{40} The other factors considered in NAR-AL are also present here: “a close relation to the third party; and ... some hindrance to the third party’s ability to protect his or her own interests.” Id. ¶ 13 (internal quotation marks and citation omitted). Again, the statutory purpose of P & A is to protect and advocate the rights of individuals with mental illness, see §§ 10801(b)(2), 10805(a)(1), therefore establishing a close relationship between P & A and an individual with mental illness subject to a petition under the Ordinance. As to the hindrance of the third party’s ability to protect his or her interests, protection and advocacy systems were created based on the belief that “individuals with mental illness are vulnerable to abuse and serious injury,” § 10801(a)(1), with “abuse” defined to include “the use of bodily or chemical restraints on [an] individual with mental illness which is not in compliance with Federal and State laws and regulations.” § 10802(1)(D) (footnote omitted). Without addressing whether the use of medications as treatment under the Ordinance is similar to the use of “chemical restraints” on an individual, we believe that the same vulnerability which Congress sought to remedy constitutes a hindrаnce to the ability of individuals with mental illness to protect their own interests when subject to a petition under the Ordinance. See § 10801(a)(1).
{41} Thus, we believe that under the standards applied in ACLUII and Forest Guardians, as well as under the factors of NARAL, P & A has standing to assert the rights of mentally ill individuals who are under a credible threat of being subject to a petition for assisted outpatient treatment under the Ordinance. Having concluded that all Plaintiffs have standing in this case, we now turn to the merits of the preemption claim.
IV. Preemption
{42} The district court determined that the Ordinance is preempted by both the Code and the Act. The district court concluded that the Ordinance is in direct conflict with the Code and the Act. Further, the court concluded that the Code and the Act together create a comprehensive scheme governing individuals with mental illness which preempts the field by implication. The City contends that the district court erred because the Ordinance and the Code can be harmonized and argues that the district court incorrectly applied the law of preemption to the City as a home-rule municipality.
{43} Whether a municipal ordinance enacted by a home-rule municipality is preempted by state law requires us to construe together a constitutional amendment, the statutes, and an ordinance, which involves a question of law reviewed de novo. NMFE,
{44} The general rule is that a municipality must look to the Legislature for an express or implied grant of authority in order to act. State ex rel. Haynes v. Bonem,
D. 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 the exercise of an independent municipal power, nor shall it include the power to provide for a penalty greater than the penalty provided for a petty misdemeanor----
E. The purpose of this section is to provide for maximum local self-government. A liberal construction shall be given to the powers of municipalities.
“[T]he express purpose and liberal construction clauses make clear that the home rule amendment is intended to provide chartered municipalities with the utmost ability to take policymaking initiative.” NMFE,
{45} At issue in the present ease is the Article X, Section 6(D) limitation on home-rule authority where a general law of the State expressly denies the municipality authority to act. N.M. Const, art. X, § 6(D); see NMFE,
{46} We determine if a statute is a general law which expressly denies the municipality authority to act by using a two-step process. Smith v. City of Santa Fe,
While a general law supersedes a municipal charter or ordinance in conflict therewith, it should be borne in mind that the subject matter of the general legislative enactment must pertain to those things of general concern to the people of the state. A law general in form cannot, under the Constitution, deprive cities of the right to legislate on purely local affairs germane to the purposes for which the city was incorporated.
Apodaca,
{47} In the second step, we ask whether state law expressly denies the City’s power to enact the Ordinance in question. See Smith,
[t]his involves an inquiry into whether the [statute] evinces any intent to negate [the] municipal [legislative] power [at issue], whether there is a clear intent to preempt that governmental area from municipal policymaking, or whether municipal authority to act would be so inconsistent with the [statute] that the [statute] is the equivalent of an express denial.
NMFE,
{48} Though NMFE sets out the inquiries listed as three separate inquiries, the purpose of all three is to determine legislative intent. Id.; Smith,
{49} As an initial matter, we note that the City argues that the district court erred in applying the conflict analysis exemplified in Casuse,
{50} We now turn to the application of the aforementioned law to the statutes and the Ordinance at hand.
A. The Code Preempts the Ordinance
{51} We must decide whether the Code preempts the Ordinance. In order to do so, we first look at the language of the Code and the Ordinance.
{52} The Code provides that:
No psychotropic medication, psychosurgery, convulsive therapy, experimental treatment or behavior modification program involving aversive stimuli or substantial deprivations shall be administered to any client without proper consent. If the client is capable of understanding the proposed nature of treatment and its consequences and is capable of informed consent, his consent shall be obtained before the treatment is performed.
§ 43-l-15(A).
{53} The Code defines “client” to include “any patient who is requesting or receiving mental health services ... or who is present in a mental health ... facility for the purpose of receiving such services.” § 43-l-3(B). In some places, the Code specifically refers to “resident clients,” see, e.g., § 43-1-6 (“Personal rights of residential clients.”); § 43-1-7 (“Right to treatment.”), whereas in others, the Code refers to a broader range of clients, as the Code does in Section 43-l-15(A).
{54} The Code has two exceptions to the informed consent requirement of Section 43-1-15(A). Under Section 43-l~15(B), a provider may petition the court for the appointment of a treatment guardian to make a substitute decision for the client if the provider believes that the client is incapable of informed consent. The court will only appoint a treatment guardian after significant procedural protections are employed. Id. The guardian must consider the client’s wishes, best interest, and whether the treatment is the least drastic means for accomplishing the objective. Id. The guardian may then “apply to the court for an enforcement order” which allows for the administration of treatment without consent. Id. Significantly, this exception specifically addresses the procedure to be followed for outpatient clients: “If a client, who is not a resident of a medical facility and for whom a treatment guardian has been appointed, refuses to comply with the decision of the treatment guardian, the treatment guardian may apply to the court for an enforcement order.” Id. This makes it clear that Section 43-1-15 governs outpatients as well as residential patients.
{55} The second exception to the rule that no psychotropic medication may be administered without consent allows a physician to administer medication without consent on an emergency basis if he or she “believes that the administration of psychotropic medication is necessary to protect the client from serious harm,” while the provisions of Section 43 — 1—15(B) are being satisfied. § 43-1-15(F).
{56} As for the Ordinance, Section 8(B) authorizes a court to “order the [s]ubject to self-administer psychotropic drugs or accept the administration of such drugs by an authorized professional as part of an assisted outpatient treatment program.” The Ordinance further allows for blood tests or urinalysis to determine whether the subject is taking the court-ordered medication, therapy, counseling, supervision of living arrangements, and more. Albuquerque, N.M., Ordinance C/S 0-06-21, § 8(B). The Ordinance does not require that an individual lack capacity in order to be subject to the Ordinance. See id. § 4 (listing the criteria to be subject to a petition and order). Further, the Ordinance states that “[t]he dеtermination by a court that a [sjubject is in need of assisted outpatient treatment shall not be construed as or deemed to be a determination that the subject is incapacitated.” Id. § 8(E). Thus, a person with capacity can be subject to a petition and order for outpatient treatment under the Ordinance.
{57} Having set out the pertinent provisions of the Ordinance, we now apply the law of preemption in order to determine whether Article X, Section 6 of the New Mexico Constitution authorizes the City to allow a court to order an individual to accept treatment without his or her consent. We must first consider whether the Code is a “general law.” Smith,
{58} Next, we turn to an analysis of whether the Code expressly denies the City’s authority to act. See Smith,
{59} The City argues that the Code and the Ordinance can be harmonized as follows: “The ... Code allows forced administration of medication on a subject only in the absence of capacity of the subject, while [the Ordinance] would allow the court to issue an order requiring the subject to comply with a treatment plan even if the subject has the mental capacity to make decisions.” We are unable to discern how the City’s reading of the Ordinance and the Code establishes that the two are in harmony. In sum, the City recognizes that the Ordinance allows a court to order a subject with capacity to comply with a treatment plan, which can include taking medication, to which he or she does not consent, and the Code prohibits the administration of medication absent consent except where the individual lacks capacity. The Ordinance and the Code are in conflict and cannot be harmonized because the Ordinance permits the court-ordered treatment of an individual with the capacity to make an informed consent, whereas Section 43-1-15(A) prohibits such an act. See Gould,
{60} The City next argues that we should apply the reasoning of the New York Court of Appeals in In re K.L.,
{61} Even, for the purpose of argument, were we to read the Ordinance to be consistent with the New York statute as to the absence of a sanction, for two reasons we conclude that the reasoning behind the New York court’s due process holding cannot be applied in the context of the preemption analysis at issue in this ease. First, the New York court was faced with a state statute that addressed assisted outpatient treatment, not an ordinance. Id. at 482. Consequently, the due process discussion in In re K.L. is not particularly helpful to our consideration of the separate issue of preemption, especially because the New York legislature had incorporated other, related mental health statutes into its assisted outpatient treatment statute. See, e.g., N.Y. Mental Hygiene Law § 9.60 (1999) (incorporating references to other mental health provisions). When considering preemption, we must, above all, follow our Legislature’s intent, which, as we discussed earlier in this opinion, is clearly that no person with capacity be treated without consent.
{62} Second, unlikе the New York statute, the Ordinance does not state that the failure to comply with a court order will not result in sanctions. See State ex rel. Apodaca v. Our Chapel of Memories of N.M., Inc.,
{63} Finally, we note that the City focuses on the underlying purpose of the Ordinance, arguing that this purpose is complementary to that of the Code and thus we should not conclude that the Code preempts the Ordinance. We recognize that both the City and the Legislature, through the Ordinance and the Code, respectively, have considered and in their own way have attempted to balance the interests of individuals in making their own mental health care treatment decisions, against the needs and desires of both the individual and the community for safety from violent episodes by individuals with mental illness. See Albuquerque, N.M., Ordinance C/S 0-06-21, § 1 (stating that the purpose of the Ordinance is to address individuals with mental illness “who are capable of living in the community with the help of family, friends and mental health professionals, but who, without routine care and treatment, may relapse and become violent, suicidal or require hospitalization”); N.M. Dep’t of Health v. Compton,
B. The Act Preempts the Ordinance
{64} Additionally, Plaintiffs argue that the Act preempts the Ordinance. The district court agreed.
{65} The Act allows an individual with capacity to give detailed instructions, in written or oral form, regarding his or her preferences for treatment should he or she become incapacitated. §§ 24-7B-4(A), -9(E). “Capacity” is defined as:
an individual’s ability to understand and appreciate the nature and consequences of proposed mental health treatment, including significant benefits and risks and alternatives to the proposed mental health treatment, and to make and communicate an informed mental health treatment decision.
§ 24-7B-3(C). According to the Act:
[A] health care provider or mental health treatment facility providing care to a patient shall comply:
(1) before and after the patient is determined to lack capacity, with an individual instruction of the patient made while the patient had capacity;
(2) with a reasonable interpretation of the individual instruction made by a person then authorized to make mental health treatment decisions for the patient; and
(3) with a mental health treatment decision for the patient that is not contrary to an individual instruction of the patient and is made by a person then authorized to make mental health treatment decisions for the patient, to the same extent as if the decision had been made by the patient while having capacity.
§ 24-7B-9(E). Exceptions to this requirement exist when:
(1) the treatment requested is infeasible or unavailable;
(2) the facility or provider is not licensed or authorized to provide the treatment requested; or
(3) the treatment requested conflicts with other applicable law.
§ 24-7B-9(F). Additional exceptions exist when the treatment requested would require “medically ineffective health care or health care contrary to generally accepted health care standards.” § 24-7B-9(G).
{66} Under the Act, an advance directive for mental health treatment can include, for example, instructions on which medications an individual does or does not consent to take, how the medication can be administered, physicians by whom the individual does or does not consent to be treated, preferred treatment instead of hospitalization if feasible, instructions regarding the use of restraint and seclusion, instructions regarding the use of electroconvulsive therapy, and the appointment of an agent. See § 24-7B-7(E). Alternatively, an individual may execute a power of attorney for mental health treatment “that may authorize the agent to make any mental health treatment decision” for the individual should the individual become incapacitated. § 24-7B-4(B), (C).
{67} The Ordinance, on the other hand, allows the court to order treatment to which an individual does not consent if an individual meets the criteria in Section 4(A) of the Ordinance, whether or not the individual lacks capacity. See Albuquerque, N.M., Ordinance C/S 0-06-21, § 4(A); id. § 8(E) (distinguishing a determination that outpatient assistance is appropriate from a determination that an individual is incapacitated). The Ordinance allows the court tо order an individual to self-administer or accept the administration of treatment, including medication, by an authorized professional. Id. § 8(B). With regard to advance health care directives, the Ordinance requires the physician developing the treatment plan to “take into account” any advance directives. Id. § 7(B). Additionally, “the court shall take into account any advance directives or directions by the personal representative, agent, surrogate, guardian or individual designated by the person in determining the written treatment plan.” Id. § 4(B). Finally, “[n]othing in this Ordinance shall preclude a person with an authorized representative from being subject to a petition for an order authorizing assisted outpatient treatment.” Id. § 4(B).
{68} Applying the analysis set forth earlier in this opinion to determine whether the Ordinance is preempted by the Act, we first look to see if the Act is a general law. Smith,
{69} Next, we look at whether the Act expressly denies the City power to enact the Ordinance. Smith,
{70} The Act requires health care providers to comply with an individual’s health care instructions, written or oral, made while the individual has capacity. § 24-7B-9(E). The Act also requires a physician to comply with the treatment decisions made by an individual’s agent if the individual lacks capacity. Id. This provision of the Act conflicts with and thereby preempts the Ordinance because the Ordinance allows a physician to not comply with (1) the oral or written treatment decisions of an individual with capacity, (2) the oral or written instructions given when an individual had capacity even where the individual currently lacks capacity, or (3) the treatment decisions made by an individual’s appointed agent if the individual lacks capacity. See Albuquerque, N.M., Ordinance C/S 0-06-21, §§ 4(B), 7(B), 8(B). The clear import of the Act is to require compliance with an individual’s treatment decisions made while that individual has capacity. See § 24-7B-9(E). While the Ordinance requires the court to “take into account” advance directives when issuing an order for assisted outpatient treatment, it would nonetheless allow treatment contrary to that specified in advance directives because the Ordinance allows the court to order treatment to which an individual does not consent. Thus, the Ordinance allows a deviation from the requirement of Section 24-7B-9(E) that a physician honor the treatment decisions of an individual given while the individual has capacity, and therefore it allows an act that the Act forbids. Based on this conflict, the Act preempts the Ordinance.
C. The Code and the Act Create a Comprehensive Scheme Preempting the Ordinance
{71} Additionally, we agree with the district court that the Code and the Act create a scheme so comprehensively regulating the area of treating individuals with mental illness, with or without the consent of those individuals, that the two state laws together preempt the City from enacting a separate ordinance regulating individuals with mental illness. See ACLU I, 1999— NMSC-044, ¶ 13,
D. Severability
{72} P & A argues that other parts of the Ordinance are also preempted. We do not find it necessary to review these arguments, however, because the effect of our conclusion that Section 8(B) is preempted is that the entire Ordinance is effectively preempted. This is so even though the Ordinance contains the following severability clause:
If any section, paragraph, sentence, clause, word or phrase of this [Ordinance is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this [0]rdinanee. The Council hereby declares that it would have passed this [0]rdinance and each section, paragraph, sentеnce, clause, word or phrase thereof irrespective of any provision being declared unconstitutional or otherwise invalid.
Albuquerque, N.M., Ordinance C/S 0-06-21, § 14.
{73} “[A] severability clause raises a presumption that the legislating body would have enacted the rest of the ordinance without the void section.” Chapman v. Luna,
{74} Because our holding is that a court cannot order that an individual accept treatment without consent as allowed in Section 8(B) of the Ordinance, the purpose of the rest of the sections of the Ordinance cannot be fulfilled. In effect, invalidating the relief allowed by the Ordinance in Section 8(B) invalidates the entire Ordinance. The City does not argue otherwise. We hold that the entire Ordinance is preempted.
CONCLUSION
{75} We conclude that Plaintiffs have standing to challenge the Ordinance. Further, the Ordinance is preempted by both the Code and the Act. We affirm the district court’s permanent injunction against enforcing the Ordinance.
{76} IT IS SO ORDERED.