§ RULE 1-074. ADMINISTRATIVE APPEALS; STATUTORY REVIEW BY DISTRICT COURT OF ADMINISTRATIVE DECISIONS OR ORDERS

RULE 1-074. ADMINISTRATIVE APPEALS; STATUTORY REVIEW BY DISTRICT COURT OF ADMINISTRATIVE DECISIONS OR ORDERS

A. Scope of Rule. This rule governs appeals from administrative agencies to the district courts when there is a statutory right of review to the district court, whether by appeal, right to petition for a writ of certiorari or other statutory right of review. This rule does not create a right to appeal. For purposes of this rule, an “agency” means any state or local government administrative or quasi-judicial entity.

B. Rule Inapplicable. This rule does not apply to:

(1) reviews from administrative agencies when there is no statutory right. If there is no statutory right of appeal or statutory right to writ of certiorari, an aggrieved person may be entitled to a constitutional review of an administrative decision or order pursuant to Rule 1-075 NMRA of these rules;

(2) appeals under the Human Rights Act. These appeals are governed by Rule 1-076 NMRA of these rules;

(3) the review of decisions relating to unemployment compensation claims under the Unemployment Compensation Law. Appeals from decisions involving unemployment compensation claims are governed by Rule 1-077 NMRA of these rules; and

(4) matters relating to water rights under Article XVI, Section 5 of the New Mexico Constitution.

C. Filing Appeal. When provided or permitted by law, an aggrieved party may appeal a final decision or order of an agency by:

(1) filing with the district court a notice of appeal with proof of service that a copy of the notice has been served in accordance with Subparagraph (1) of Paragraph F of this rule; and

(2) promptly filing with the agency a copy of the notice of appeal that has been endorsed by the clerk of the district court.

D. Content of the Notice of Appeal. The notice of appeal shall specify:

(1) each party taking the appeal;

(2) each party against whom the appeal is taken;

(3) the name and address of appellate counsel if different from the person filing the notice of appeal; and

(4) any other information required by the law providing for the appeal to the district court.

A copy of the order or decision of the agency appealed from, showing the date of the order or decision, shall be attached to the notice of appeal filed in the district court.

E. Time for Filing Appeals. Unless a specific time is provided by law or local ordinance, an appeal from an agency shall be filed in the district court within thirty (30) days after the date of the final decision or order of the agency. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten (10) days after the date on which the first notice of appeal was served or within the time otherwise prescribed by this rule, whichever period expires last. The three (3) day mailing period set forth in Rule 1-006 does not apply to the time limits set forth in this paragraph. A notice of appeal filed after the announcement of a decision by an agency, but before the decision or order is issued by the agency, shall be treated as timely filed.

F. Service of Notice of Appeal and Arranging Preparation of the Record. At the time the notice of appeal is filed in the district court, the appellant shall:

(1) serve each party or such party's attorney in the administrative proceedings with a copy of the notice of appeal in accordance with Rule 1-005 NMRA; and

(2) file a certificate in the district court that satisfactory arrangements have been made with the agency for preparation of and payment, if required, for the record of the proceedings.

G. Docketing the Appeal. Upon the filing of the notice of appeal and proof of service and payment of the docket fee, if required, the clerk of the district court shall docket the appeal in the district court. Notwithstanding any other provision of this rule, no docket fee or other cost shall be imposed upon a state agency or a political subdivision of the state in any such appeal.

H. Record on Appeal. Unless a different period is provided by law, within thirty (30) days after the filing of the notice of appeal with the agency pursuant to Paragraph C of this rule, the agency shall number consecutively and bind the pages of the record on appeal taken in the proceedings and file it in accordance with Rule 1-005 NMRA. For purposes of this rule, unless the parties stipulate to a partial designation of the record by filing such a stipulation in the district court within five (5) days after the filing of the notice of appeal, the record on appeal shall consist of:

(1) a title page containing the names and mailing addresses of each party or, if the party is represented by counsel, the name and address of the attorney;

(2) a copy of all papers, pleadings, and exhibits filed in the proceedings of the agency, entered into or made a part of the proceedings of the agency, or actually presented to the agency in conjunction with the hearing, which shall be organized by date submitted to the agency beginning with the earliest paper or pleading;

(3) a copy of the final decision or order sought to be reviewed with date of issuance noted thereon; and

(4) the transcript of the proceedings, if any. If the transcript of the proceedings is an audio or video recording, the agency shall prepare and file with the district court a duplicate of the recording and index log. If the proceedings were stenographically recorded, the agency shall transcribe and file with the court those parts of the record specified by any party.

Any party desiring a copy of the transcript of the proceedings shall be responsible for paying the cost, if any, of preparing such copy. The agency shall give prompt notice to all parties of the filing of the record on appeal with the court.

I. Correction or Modification of the Record. If anything material to either party is omitted from the record on appeal by error or accident, the parties by stipulation, or the agency on request, or the district court, on proper suggestion or on its own initiative, may direct that the omission be corrected and a supplemental record transmitted to the district court; provided, however, only those materials described in Paragraph H of this rule shall be made a part of the record on appeal.

J. Statement of Appellate Issues. A statement of appellate issues shall be filed with the district court as follows:

(1) the appellant's statement shall be filed and served within thirty (30) days from the date of service of the notice of filing of the record on appeal in the district court;

(2) the appellee's response shall be filed and served within thirty (30) days after service of the appellant's statement of issues; and

(3) if the appellee files a response, the appellant may file a reply to the appellee's response within fifteen (15) days after service of the appellee's response.

K. Appellant's statement of appellate issues. The appellant's statement of the appellate issues, under appropriate headings and in the order here indicated, shall contain:

(1) a statement of the issues;

(2) a summary of the proceedings, briefly describing the nature of the case, the course of proceedings, and the disposition in the agency. The summary shall include a short recitation of all facts relevant to the issues presented for review, with specific references to the record on appeal showing how the issues were preserved in the proceedings before the agency. A contention that a decision or finding of fact is not supported by substantial evidence shall be deemed waived unless the summary of proceedings includes the substance of the evidence bearing upon the proposition;

(3) an argument, which shall contain the contentions of the appellant with respect to each issue presented in the statement of appellate issues, with citations to the authorities, statutes and the record on appeal relied upon, and with a statement of the applicable standard of review. Applicable New Mexico decisions shall be cited. The argument shall set forth a specific attack on any finding, or such finding shall be deemed conclusive. A contention that a decision or finding of fact is not support by substantial evidence shall be deemed waived unless the argument identifies with particularity the fact or facts that are not supported by substantial evidence; and

(4) a statement of the precise relief sought.

L. Appellee's Response. The appellee's response shall conform to the requirements of Subparagraphs (1) to (4) of Paragraph K of this rule, except that a statement of the issues or summary of the proceedings shall not be made unless the appellant's statement of issues or a summary of the proceedings is disputed or is incomplete.

M. References in Atatement of Appellate Issues and Response. All references to the record on appeal in the statement of appellate issues and response shall be to specific page numbers or, if the reference is to an audio or video recording, to the specific counter numbers or time of the recording.

N. Length of Statements of Appellate Issues. Except by permission of the court, the appellant's statement of appellate issues shall not exceed twenty-five (25) pages. Except by permission of the court, the appellee's response shall not exceed twenty-five (25) pages. Any reply to the appellee's response shall not exceed ten (10) pages.

O. Oral Argument. Upon the filing of a request for hearing of either party or on the court's own motion, the court may allow oral argument. A party requesting oral argument shall file the request for hearing on or before the expiration of all response times under Paragraph J of this rule. If neither party requests oral argument within the time provided in this paragraph, the appellant shall promptly file a notice of completion of briefing to notify the court that the case is ready for decision by the court.

P. Motions. After the filing of the notice of appeal, at the option of a party, the following matters may be raised by motion:

(1) lack of jurisdiction over the subject matter;

(2) lack of jurisdiction over the person;

(3) improper venue;

(4) failure to join a party under Rule 1-019 NMRA;

(5) failure by the agency to issue a written decision that complies with Section 39-3-1.1(B) NMSA 1978;

(6) dismissal of the appeal on the ground that the agency decision does not constitute a final decision as defined in Section 39-3-1.1(H) NMSA 1978; and

(7) misjoinder of parties.

A motion filed pursuant to this paragraph shall not stay further proceedings unless the court orders otherwise.

Q. Stay. Upon motion, the district court may stay enforcement of the order or decision under review.

(1) Contents of motion. A motion for a stay pending appeal must:

(a) state that a request for stay was previously made to the agency and was denied, or explain why seeking a stay from the agency in the first instance would be impracticable;

(b) summarize the proceedings before the agency leading up to the action under review, to the extent necessary to inform the district court fully on matters relevant to the motion for stay;

(i) the appellant will suffer irreparable injury unless a stay is granted;

(ii) the appellant is likely to prevail on the merits of the appeal;

(iii) other interested persons will not suffer substantial harm if a stay is granted; and

(iv) the public interest will not be harmed by granting a stay.

(2) Attachments to motion. A motion for stay shall include as attachments:

(a) any relevant portions of the administrative record that are available, including any statement by the agency regarding why a request to the agency to stay the action under review was denied; and

(b) any affidavits or other admissible evidence offered to establish the factors set forth in Subparagraph (1) of this paragraph.

(3) Bond. As a condition of granting a stay, the district court may require the posting of a bond or other appropriate surety.

R. Standard of Review. The district court shall apply the following standards of review:

(1) whether the agency acted fraudulently, arbitrarily or capriciously;

(2) whether based upon the whole record on appeal, the decision of the agency is not supported by substantial evidence;

(3) whether the action of the agency was outside the scope of authority of the agency; or

(4) whether the action of the agency was otherwise not in accordance with law.

S. Certification. Upon the district court's own review, or in response to a motion for certification by any party within thirty (30) days of the filing of the notice of appeal and after allowing fifteen (15) days from service for response, the district court may, as a matter of judicial discretion, certify to the Court of Appeals a final decision appealed to the district court, but undecided by that court, if the appeal involves an issue of substantial public interest that should be decided by the Court of Appeals. In determining whether a case involves an issue of substantial public interest, the district court shall consider, but is not limited to, whether the case involves:

(1) a novel question;

(2) a constitutional question;

(3) a question of state-wide impact;

(4) a question of imperative public importance;

(5) a question that is likely to recur and the need for uniformity is great;

(6) whether an appeal from any district court determination is highly likely such that certification in the first instance would serve the interests of judicial economy and reduce the litigation expenses to the parties; or

(7) whether the case involves an important local question which should receive consideration from the district court in the first instance.

Upon the request of a party or on the court's own motion, the court may allow oral argument on the issue of certification. After receipt of the completed record, the district court shall notify the parties of its decision concerning certification as provided by Rule 12-608 NMRA.

T. District Court Decision. The district court, in its appellate capacity, shall issue a written decision, which may include:

(1) remanding the case to the administrative agency with specific instructions for further proceedings and determinations; the remand may also include instructions to make the case ripe for judicial review;

(2) reversing the decision under review, with a statement of the basis for the reversal as provided under Paragraph R of this rule; and

(3) affirming the decision under review, with a statement of the basis for affirmance.

U. Rehearing. A motion for rehearing may be filed within ten (10) days after filing of the district court's final order. The three (3) day mailing period set forth in Rule 1-006 NMRA does not apply to the time limits set by this rule. The motion shall state briefly and with particularity, but without argument, the points of law or fact that in the opinion of the movant the court has overlooked or misapprehended. No response to a motion for rehearing shall be filed unless requested by the court.

V. Appeal. An aggrieved party may seek review of an order or judgment of the district court in accordance with the Rules of Appellate Procedure.

W. Conflict Between Statute Authorizing Appeal. If there is a conflict between the time period for taking an appeal set forth in this rule and a statutory time period for taking an appeal, the statute granting the right to appeal to the district court shall control.

X. Failure to Comply with Rules.

(1) If an appellant fails to file a statement of appellate issues in the district court as provided by these rules, such failure may be deemed sufficient grounds for dismissal of the appeal by the district court.

(2) If an appellee fails to file a response as provided by these rules, the cause may be submitted upon the statement of appellate issues of appellant, and appellee may not thereafter be heard, except by permission of the district court.

(3) An appeal filed within the time limits provided in this rule shall not be dismissed for technical violations of this rule that do not affect the substantive rights of the parties.

(4) For any failure to comply with these rules or any order of the district court, the court may, on motion by appellant or appellee or on its own initiative, take such action as it deems appropriate in addition to that set out in Subparagraphs (1) and (2) of this rule, including but not limited to citation of counsel or a party for contempt, refusal to consider the offending party's contentions, assessment of fines, costs or attorney fees or, in extreme cases, dismissal or affirmance.