City of Artesia v. PERA of N.M. ( 2013 )


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    New Mexico Compilation
    Commission, Santa Fe, NM
    '00'05- 16:30:42 2014.01.15
    Certiorari Denied, November 13, 2013, No. 34,364
    IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    Opinion Number: 2014-NMCA-009
    Filing Date: September 16, 2013
    Docket No. 32,355
    CITY OF ARTESIA and
    DONALD N. RALEY,
    Plaintiffs-Appellees,
    v.
    PUBLIC EMPLOYEES RETIREMENT
    ASSOCIATION OF NEW MEXICO,
    Defendant-Appellant.
    APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
    Lisa B. Riley, District Judge
    Robles, Rael & Anaya, P.C.
    Marcus J. Rael, Jr., Esq.
    Adam H. Greenwoood, Esq.
    Vanessa R. Chavez, Esq.
    Albuquerque, NM
    for Appellees
    Public Employees Retirement Association
    Susan G. Pittard, General Counsel
    Christopher Bulman, Assistant General Counsel
    Santa Fe, NM
    for Appellant
    OPINION
    WECHSLER, Judge.
    1
    {1}     The City of Artesia (the City) and its Chief of Police Donald Raley (Raley)
    (Plaintiffs) filed an action for injunctive relief, writ of mandamus, and declaratory judgment
    to prevent the Public Employees Retirement Association of New Mexico (PERA) from
    suspending Raley’s pension after the March 2012 municipal election in Artesia. When
    Raley was appointed to this position, NMSA 1978, Section 10-11-8(D) (2004) (amended
    2010) provided that a PERA retiree appointed as a chief of police for a municipality had the
    option of filing an irrevocable exemption from PERA membership for the chief of police’s
    “term of office.” In 2010, the Legislature amended Section 10-11-8 and removed this chief
    of police exemption. The district court determined that PERA could not apply the 2010
    version of Section 10-11-8 to Raley because the City appointed Raley for an indefinite term.
    We hold that Raley’s term of office coincides with the City’s organizational meeting
    following the municipal election held every two years and, therefore, the district court erred
    in determining that Raley’s term of office was for an indefinite term. Accordingly, we
    reverse.
    BACKGROUND
    {2}     The City appointed Raley to the position of chief of police in September 2006. At the
    time of his appointment, Raley was a PERA retiree and received a pension. At that time,
    Section 10-11-8(D) (2004) provided that a PERA retiree appointed as a chief of police for
    a municipality had the option of filing an irrevocable exemption from PERA membership
    for the chief of police’s “term of office.” This exemption allowed Raley to receive both his
    pension and his salary without either Raley or the City having to make contributions to the
    PERA trust fund. 
    Id. The City
    submitted the required exemption request form when it
    appointed Raley and left blank the line indicating the end date of Raley’s “term of office.”
    {3}     In 2010, the Legislature amended Section 10-11-8 and removed the chief of police
    exemption. See NMSA 1978, § 10-11-8 (2010). The effect of the 2010 amendment on
    Raley’s exemption gives rise to the dispute in this case. Plaintiffs’ position is that Raley’s
    2006 appointment was for an “indefinite term,” and, therefore, the exemption remained in
    effect until his service with the City was interrupted or terminated. PERA asserts that
    municipal appointees, including a chief of police, serve definitive terms of two years, subject
    to reappointment at a municipality’s organizational meeting following each biennial
    municipal election. According to PERA, Raley’s exemption ended when the City held its
    organizational meeting following the March 2012 municipal election because Raley’s
    position required appointment and reappointment every two years.
    {4}     After a substantive hearing on November 16, 2011, the district court granted a
    preliminary injunction preventing PERA from suspending Raley’s pension following the
    election. It subsequently issued its final order allowing Raley to continue to simultaneously
    receive his salary and his pension for an indefinite period, applying the pre-2010 version of
    Section 10-11-8. The district court found that the City appointed Raley as the chief of police
    for an “indefinite term” in 2006 and that PERA could not terminate Raley’s exemption based
    on the 2010 amendment to Section 10-11-8(D). PERA filed a timely appeal.
    2
    {5}      On appeal, PERA raises three issues, that the district court erred by (1) determining
    that the City has standing to litigate the issue of Raley’s eligibility to simultaneously receive
    a salary and a pension, (2) finding that Raley was appointed for an “indefinite term” and that
    therefore a termination of his exemption pursuant to the 2010 amendment to Section 10-11-
    8(D) would constitute a violation of state law, and (3) granting injunctive relief prohibiting
    PERA from terminating Raley’s exclusion on or after the March 2012 organizational
    meeting.
    CITY OF ARTESIA’S STANDING
    {6}     We first turn to the issue of the City’s standing. According to PERA, “the City is
    neither classically aggrieved nor has it provided any basis for standing under the Declaratory
    Judgment Act, NMSA 1978, §§ 44-6-1 to -15 (1975), [and] therefore, the district court erred
    in concluding the City also had standing.”
    {7}      Unlike in federal courts, standing in New Mexico courts is not jurisdictional because
    it is not governed by the New Mexico Constitution. ACLU of N.M. v. City of Albuquerque,
    2008-NMSC-045, ¶ 9, 
    144 N.M. 471
    , 
    188 P.3d 1222
    . However, “at least as a matter of
    judicial policy if not of jurisdictional necessity, our courts have generally required that a
    litigant demonstrate injury in fact, causation, and redressability to invoke the court’s
    authority to decide the merits of a case.” 
    Id. ¶ 10.
    The standing of a party to bring a claim
    is a question of law subject to de novo review. N.M. Gamefowl Ass’n, Inc. v. State ex rel.
    King, 2009-NMCA-088, ¶ 12, 
    146 N.M. 758
    , 
    215 P.3d 67
    .
    {8}     But, even though the district court granted the City standing to litigate the issues in
    this case, we do not consider standing to be necessary for our review. Raley is also a
    Plaintiff, and PERA concedes that there is no dispute that “Raley has standing to litigate the
    proper application of [the 2010 amendment to Section 10-11-8(D)] because it directly affects
    his ability to continue to receive both a salary and a pension.” Because Raley has standing
    to assert the substantive relief sought in this case, we need not independently address the
    City’s standing. See Comcast Corp. v. Fed. Commc’n Comm’n, 
    579 F.3d 1
    , 6 (D.C. Cir.
    2009) (“[I]f one party has standing in an action, a court need not reach the issue of the
    standing of other parties when it makes no difference to the merits of the case.” (internal
    quotation marks and citation omitted)). We proceed to the merits of the case.
    SECTION 10-11-8(D)
    {9}     Prior to the 2010 amendment, the PERA return-to-employment provisions provided
    that “a retired member may be subsequently employed by an affiliated public employer if”
    certain conditions applied. Section 10-11-8(C) (2004). These conditions included that the
    retired member and the affiliated employer “shall” make contributions to the PERA fund.
    Section 10-11-8(C)(2), (3) (2004). Section 10-11-8(D)(1)(c) (2004) contained an exemption
    for a PERA retiree who was appointed as the chief of police of a municipality for the
    duration of the chief of police’s “term of office.” The exemption allowed the chief of police
    3
    to continue receiving a PERA pension and a salary without either the retiree or the retiree’s
    employer making contributions to the fund. See Section 10-11-8(D)(1) (2004).
    {10} After the 2010 amendment, Section 10-11-8 provides that a retired member may
    subsequently be employed by an affiliated employer but, among other conditions, “the
    retired member’s pension shall be suspended upon commencement of the employment[.]”
    Section 10-11-8(C)(2). The amendment went into effect on July 1, 2010. 2010 N.M. Laws,
    ch. 18, § 2.
    {11} PERA argues that the district court erred by finding that Raley was appointed for an
    “indefinite term” as chief of police, that the chief of police exemption therefore still applies,
    and that suspending Raley’s pension would constitute a violation of state law. On the other
    hand, Plaintiffs contend that the phrase “term of office” does not contemplate a fixed term
    and that Raley and the City “have long agreed and understood” that his term is for an
    indefinite length. The parties agree that, because the chief of police exemption was no
    longer available after July 1, 2010, a retired member appointed to the position of chief of
    police after July 1, 2010 would be subject to the new statutory provisions. The issue in this
    case is whether Raley’s “term of office” ended upon the March 2012 municipal election and
    subsequent organizational meeting. This issue requires statutory interpretation of Section
    10-11-8(D)(1) and is therefore primarily a question of Legislative intent. See Bd. of Educ.
    v. N.M. State Dep’t of Pub. Educ., 1999-NMCA-156, ¶ 16, 
    128 N.M. 398
    , 
    993 P.2d 112
    (“The primary purpose of statutory interpretation is to ascertain and give effect to legislative
    intent.” (internal quotation marks and citation omitted)).
    {12} The “primary indicator” of legislative intent is the language of the statute. Gonzales
    v. State Pub. Emps. Ret. Ass’n, 2009-NMCA-109, ¶ 13, 
    147 N.M. 201
    , 
    218 P.3d 1249
    (internal quotation marks and citation omitted). “We do not depart from the plain language
    of a statute unless we must resolve an ambiguity, correct a mistake or absurdity, or deal with
    a conflict between different statutory provisions.” N.M. Bd. of Veterinary Med. v. Riegger,
    2007-NMSC-044, ¶ 11, 
    142 N.M. 248
    , 
    164 P.3d 947
    . Additionally, we determine the
    legislative intent “by reading all the provisions of a statute together, along with other statutes
    in pari materia.” N.M. Mining Ass’n v. N.M. Water Quality Control Comm’n, 2007-NMCA-
    010, ¶ 12, 
    141 N.M. 41
    , 
    150 P.3d 991
    .
    {13} Our Supreme Court has addressed the meaning of the word “term” and whether a
    “term of office” has expired in a different context in Denish v. Johnson, 1996-NMSC-005,
    
    121 N.M. 280
    , 
    910 P.2d 914
    . The issue in Denish was whether the terms of office of two
    regents at the New Mexico Institute of Mining and Technology had expired so that the
    governor could appoint their replacements. 
    Id. ¶¶ 1,
    15. The Court defined “term” as “the
    fixed period of time the appointee is authorized to serve in office. It is a period that is
    established by law and specified by the executive in his or her letters of appointment.” 
    Id. ¶ 18.
    {14}    Our Supreme Court again addressed the word “term” and phrase “term of office” in
    4
    Block v. Vigil-Giron, 2004-NMSC-003, 
    135 N.M. 24
    , 
    84 P.3d 72
    . In Block, the plaintiff was
    a member of the Public Regulatory Commission (PRC) who sought a declaration to be put
    on the ballot in the next general election to run for a second four-year term. 
    Id. ¶ 1.
    The
    plaintiff had served a two-year term upon the creation of the PRC, which was necessary in
    order for the members to serve staggered terms, and was subsequently elected to a full four-
    year term. 
    Id. ¶ 2.
    The New Mexico Constitution limits PRC members from serving for
    more than two terms. 
    Id. ¶ 1.
    The plaintiff argued that since his first term was a shortened
    two-year term, he had not served two terms and was entitled to run for a second four-year
    term. 
    Id. The Court
    examined the “normal understanding of the word ‘term’ ” and
    determined that it means a “fixed and definite period of time; implying a period of time with
    some definite termination.” 
    Id. ¶ 5
    (quoting Black’s Law Dictionary 1482 (7th ed. 1999)).
    The Court further defined “term of office” as the “period during which an elected officer or
    appointee may hold office, perform its functions, and enjoy its privileges and emoluments.”
    
    Id. (quoting Black’s
    Law 
    Dictionary, supra, at 1483
    ). The Court applied these definitions,
    noted that they were consistent with Denish, and held that the plaintiff had served two terms
    and was therefore ineligible to be on the ballot. 
    Id. ¶ 6.
    {15} Applying these definitions, the legislative intent of the phrase “term of office” in
    Section 10-11-8(D)(1) (2004) refers to the period during which the chief of police may hold
    the office, perform its functions, and enjoy its privileges. We turn to the statutes outlining
    the appointment of municipal officers and employees in the Municipal Code, NMSA 1978,
    §§ 3-1-1 to -66-11 (1965, as amended through 2011), to determine if the district court erred
    in concluding that Raley’s appointment as chief of police was for an “indefinite term.”
    {16} Section 3-11-6(A)(1) (1965) provides that “[s]ubject to the approval of a majority of
    all members of the governing body [of a municipality], the mayor shall: (1) appoint all
    officers and employees except those holding elective office[.]” Under Section 3-12-4(A)
    (1965), the chief of police is one of the appointive officers of a municipality. Section 3-11-
    5(A) (1985) provides that
    [a]t the organizational meeting of the governing body [following a municipal
    election], the mayor shall submit, for confirmation by the governing body,
    the names of persons who shall fill the appointive office of the
    municipality . . . . If the governing body fails to confirm any person as an
    appointive official or employee of the municipality, the mayor at the next
    regular meeting of the governing body shall submit the name of another
    person to fill the appointed office or to be employed by the municipality.
    The Municipal Code mandates that regular elections be held on the first Tuesday in March
    on even numbered years. Section 3-8-25 (1985). It also provides that the organizational
    meeting following a municipal election shall be held “not earlier than the sixth day after the
    election or later than the twenty-first day after the election.” Section 3-8-33(H) (1995).
    {17}   In compliance with the provisions of the Municipal Code, a municipality’s chief of
    5
    police cannot have an “indefinite term” because the term is dependent on the results of each
    election, an appointment by the mayor at the organizational meeting, and confirmation by
    the governing body. Under the plain meaning of “term of office” as defined by Denish and
    Block, and in conjunction with the appointment and confirmation provisions in the Municipal
    Code, the term of office for a chief of police begins with the organizational meeting
    confirming the mayor’s appointment and lasts until the next organizational meeting held
    following the next municipal election. In other words, the chief of police serves a two-year
    term commencing on the organizational meeting in which he or she is appointed until the
    next organizational meeting. Accordingly, Raley served a term of office that commenced
    following the March 2010 election and expired when he was appointed and confirmed at the
    organizational meeting following the March 2012 election. See Denish, 1996-NMSC-005,
    ¶ 16 (“A term expires when the appointee has served to the legally specified termination
    date.”). The district court therefore erred in determining that Raley’s term of office was
    indefinite and mandating that PERA apply the pre-2010 version of Section 10-11-8 to Raley.
    {18} We note that Section 10-11-8(D) (2010) contained two exemptions from the return-
    to-employment provisions. Both exemption provisions apply to retirees employed in
    temporary positions, or serving in an elected office, with a definitive end. See 
    id. (providing exemptions
    from the PERA return-to-work provisions for retirees (1) employed by the
    Legislature for legislative session work, and (2) elected to serve a term as an elected
    official). These provisions support a conclusion that the Legislature only provided
    exemptions to retirees employed in positions with definitive terms. See also Section 10-11-
    8(E) (2013) (adding exemption for retirees employed temporarily as precinct board members
    for elections).
    {19} Plaintiffs make five additional arguments as to why our conclusion is incorrect. First,
    Plaintiffs contend that “[g]iven that [the Municipal Code] treat[s] municipal officers and
    employees similarly, the municipal authority over appointed officials should be similar to
    the authority over regular employees. There is no dispute that municipal employees do not
    serve ‘terms of office’ that terminate and re-start each election year.” Accordingly,
    Plaintiffs’ position is that municipal officers do not serve fixed terms of office under the
    Municipal Code. In support, Plaintiffs point out that Section 3-11-5(A) mandates that the
    mayor “shall submit, for confirmation by the governing body, the names of persons who
    shall fill the appointive offices of the municipality and the names of persons who shall be
    employed by the municipality.” However, Section 3-11-5(B) provides that “[a]ny person
    holding an appointed office at the time of the municipal election shall continue in that office
    until his successor has been appointed and is qualified.” This holdover provision does not
    apply to employees of the municipality who are not appointed officers. It would be
    unnecessary if the Legislature intended that appointed officers serve indefinite terms. See
    Denish, 1996-NMSC-005, ¶ 51 (holding that a holdover provision in our state constitution
    “is not a simple extension of the expired term[; r]ather[,] it is an intrusion into the term
    following”). The lack of a similar holdover provision that applies to employees supports a
    distinction between municipal employees and appointed officers despite the similar
    treatment under Section 3-11-5(A).
    6
    {20} Second, Plaintiffs argue that the Municipal Code never expressly states that the term
    of office for the chief of police is “fixed” and that Raley and the City have “long agreed and
    understood” that Raley’s appointment was “indefinite” when the mayor appointed Raley in
    2006. However, as we have discussed, the Municipal Code requires the mayor to reappoint
    and the governing body to confirm the chief of police every two years, which is inconsistent
    with any asserted agreement between Raley and the City that Raley’s appointment was
    indefinite. See § 3-11-6(A)(1); § 3-11-5(A). The length of Raley’s “term of office” as
    defined by the Municipal Code has legal superiority over any inconsistent agreement
    between the parties. See K.R. Swerdfeger Constr., Inc. v. Bd. of Regents, Univ. of N.M.,
    2006-NMCA-117, ¶ 27, 
    140 N.M. 374
    , 
    142 P.3d 962
    (“Our case law has repeatedly
    recognized that New Mexico . . . has a strong public policy of freedom to contract that
    requires enforcement of contracts unless they clearly contravene some law or rule of public
    morals.” (internal quotation marks and citation omitted)). Under the provisions we have
    discussed, the chief of police serves a term that is fixed in the sense that it commences upon
    appointment and confirmation at or subsequent to an organizational meeting and requires
    reappointment and confirmation at the next organizational meeting following every biennial
    municipal election.
    {21} Third, Plaintiffs argue that the relevant portions of the Municipal Code relating to the
    discharge of municipal officers are “statutory indicia lead[ing] to the conclusion that
    municipal officers serve indefinitely” because the “mayor and the municipal governing body
    may . . . discharge appointed persons at any time.” Indeed, Section 3-11-6(D) provides that
    “(1) the governing body may discharge an appointed official or employee by a majority of
    all members of the governing body; (2) the mayor may discharge an appointed official or
    employee upon the approval of a majority of all the members of the governing body[.]”
    However, there is no contradiction between a fixed two-year term and the removal power
    upon a majority vote by the governing body during that fixed term. Early removal of an
    appointed officer is one of the additional statutory powers granted to a municipality by the
    Legislature. Section 3-11-6(D).
    {22} Fourth, Plaintiffs argue that if the Legislature “wishes to make clear that a term is for
    a definite period, it says so.” See, e.g., NMSA 1978, § 32A-5-42(B) (1993) (requiring
    criminal sentences of a “definite term” for the crime of unauthorized facilitation of
    adoptions); NMSA 1978, § 54-1A-406(A) (1997) (referring to partnerships for a “definite
    term”). But the statutes at issue in this case are different from the examples cited by
    Plaintiffs and there is no ambiguity as to the “term of office” in light of the provisions of the
    Municipal Code. As discussed, Section 10-11-8(D)(1) (2004) generally provided an
    exemption from the return-to-work procedures for the “term of office” of a chief of police.
    The Municipal Code defines the length of the term of office. Dydek v. Dydek,
    2012-NMCA-088, ¶ 58, 
    288 P.3d 872
    (“[A]s a rule of statutory construction, we read all
    provisions of a statute and all statutes in pari materia together in order to ascertain the
    legislative intent.” (alteration in original) (internal quotation marks and citation omitted)).
    {23}    Lastly, Plaintiffs argue that Denish is distinguishable and that “it is simply not true
    7
    that Denish was adopting a general definition of ‘term’ that was meant to apply outside the
    state-officer context of the case.” In Block, our Supreme Court clarified that the “normal
    understanding” of the word “term” is that it is the “period during which an elected officer
    or appointee may hold office, perform its functions, and enjoy its privileges and
    emoluments.” 2004-NMSC-003, ¶ 5. The Block Court noted that the definition it applied
    was consistent with Denish. Denish and Block both generally applied the plain meaning of
    the word “term” to the statutes and constitutional provisions at issue in those cases, as we
    have done in this case. See Gonzales, 2009-NMCA-109, ¶ 13.
    CONCLUSION
    {24} Raley’s term of office concluded with the City’s organizational meeting following
    the 2012 municipal election, and, therefore, the district court erred in determining that
    Raley’s term of office was for an indefinite term. Accordingly, we reverse.
    {25}   IT IS SO ORDERED.
    ____________________________________
    JAMES J. WECHSLER, Judge
    WE CONCUR:
    ___________________________________
    TIMOTHY L. GARCIA, Judge
    ___________________________________
    M. MONICA ZAMORA, Judge
    Topic Index for City of Artesia v. PERA of N.M., No. 32,355
    ADMINISTRATIVE LAW AND PROCEDURE
    Administrative Appeal
    Judicial Review
    Legislative Intent
    Standard of Review
    APPEAL AND ERROR
    Standard of Review
    CIVIL PROCEDURE
    Injunctions
    Standing
    EMPLOYMENT LAW
    8
    Health, Pension, and Retirement Benefits
    GOVERNMENT
    Municipalities
    Public Employees
    STATUTES
    Interpretation
    Legislative Intent
    9