Montoya v. N.M. Tax'n & Revenue Dep't ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39535
BRYAN MARTINEZ,
Petitioner-Appellant,
and
LETICIA MONTOYA, as Personal
Representative of the ESTATE OF
DAVID MONTOYA, Deceased,
Petitioner-Appellant,
v.
NEW MEXICO TAXATION & REVENUE
DEPARTMENT, MOTOR VEHICLE
DIVISION,
Respondent-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Matthew J. Wilson, District Court Judge
Dan Cron Law Firm, P.C.
Dan Cron
Santa Fe, NM
Kitren Fischer Law, LLC
Kitren Fischer
Santa Fe, NM
for Appellants
Richard Pener, Special Assistant Attorney General
Santa Fe, NM
for Appellee
The Law Office of Jamison Barkley, LLC
Jamison Barkley
Santa Fe, NM
Angelica Hall
Albuquerque, NM
for Amicus Curiae New Mexico Criminal Defense Lawyers Association
MEMORANDUM OPINION
IVES, Judge.
{1} In this consolidated appeal, Petitioners Bryan Martinez and David Montoya
appeal administrative hearing officers’ decisions to sustain Petitioners’ license
revocations under the Implied Consent Act (ICA), NMSA 1978, Section 66-8-105 to -112
(1978, as amended through 2019). Because Mr. Montoya died during the pendency of
this appeal,1 we consider only Petitioner Martinez’s appeal. Petitioner argues that the
Administrative Hearings Office (AHO) violated separation of powers principles
enshrined in the New Mexico Constitution when it denied Petitioner his statutory right to
an in-person hearing.2 See N.M. Const. art. III, § 1. On the basis of the arguments
presented by the parties, we reverse and remand for further proceedings. We
emphasize that we issue this nonprecedential memorandum opinion solely for the
benefit of the parties.
DISCUSSION
{2} We may reverse an administrative decision only if we find “that the administrative
entity acted fraudulently, arbitrarily, or capriciously; if the decision was not supported by
substantial evidence in the whole record; or if the entity did not act in accordance with
the law.” Miller v. Bd. of Cnty. Comm’rs, 2008-NMCA-124, ¶ 16, 144 N.M. 841, 192 P.3d
1218 (text only) (citation omitted); see also § 66-8-112(H) (providing for statutory review
of ICA license revocations); Rule 1-074(R) NMRA (stating the standards of review for
administrative appeals). In conducting this analysis, we review conclusions of law de
1In a response to this Court’s order to show cause, Mr. Montoya’s appellate counsel conceded that the
decedent “cannot now receive any actual relief.” As a result, the claims of Mr. Montoya—and his estate—
are moot. See Leonard v. Payday Pro./Bio-Cal Comp., 2008-NMCA-034, ¶ 8, 143 N.M. 637, 179 P.3d
1245 (“An appeal is moot when no actual controversy exists, and an appellate ruling will not grant the
appellant any actual relief.”) (text only) (citation omitted). We note, however, that the mootness of Mr.
Montoya’s claims does not change the substance of our analysis because the cases were consolidated
before briefing in this case, and thus both Petitioners made the same argument on the merits of the issue
discussed in this opinion.
2Mr. Martinez also challenges the AHO’s action on procedural due process grounds, but because we
reverse his license revocation on separation of powers grounds, we do not reach the due process issue.
novo. See City of Albuquerque v. AFSCME Council 18 ex rel. Puccini, 2011-NMCA-021,
¶ 8, 149 N.M. 379, 249 P.3d 510.
{3} In this appeal we are presented with an apparent conflict between a statutory
right to an in-person hearing under the ICA, and public health restrictions that were
imposed during the COVID-19 pandemic. On the one hand, one of the ICA’s statutory
provisions—Section 66-8-112(B)—guarantees that license revocation hearings are to
be held in-person. See Evans v. N.M. Tax’n & Revenue Dep’t, 1996-NMCA-080, ¶ 14,
122 N.M. 216, 922 P.2d 1212 (noting that “in the absence of clear legislative intent to
the contrary, we will read [Section 66-8-112(B)’s] language, a ‘hearing shall be held in
the county,’ to mean an in-person hearing held in one place in the relevant county”);
Martinez v. N.M. Tax’n & Revenue Dep’t, 2023-NMCA-049, ¶ 34, 534 P.3d 248(acknowledging that “an in-person hearing is required under Section 66-8-112”). On the
other hand, at the time of Petitioner’s requested ICA license revocation hearing, a state-
wide Public Health Emergency Order (PHEO) mandated—among other things—that all
businesses not deemed “essential” cease their in-person operation. Dep’t of Health
(DOH), Public Health Order at 2, 4 (N.M. Mar. 23, 2020).3 In a recent case, we held that
the AHO was a “nonessential business” for the purposes of the PHEO. Martinez, 2023-
NMCA-049, ¶ 19.
{4} As such, for as long as the PHEO remained in effect, these two legal mandates
stood in direct conflict with each other. Ultimately, during this period of conflict, the AHO
chose to comply with the PHEO rather than the statute. In a Standing Order issued two
days after the PHEO, the Chief Hearing Officer noted that the in-person statutory
mandate of Section 66-8-112(B) presented “a dilemma as it relates to the current,
evolving public health crisis” but concluded that “conducting remote hearings for the
time being is the action most consistent with meeting the public health directive and
protecting the public health and welfare of all involved in the hearing process and the
residents of New Mexico.” Amended Standing Order #20-01 of the Chief Hearing Officer
at 2 (Mar. 25, 2020) (Standing Order). As a consequence, Petitioner was not afforded
an in-person revocation hearing.
{5} We recently addressed certain aspects of this conflict in Martinez. There we
acknowledged that the statute conflicts with the PHEO and the Standing Order, but we
declined to resolve that conflict because we lacked any developed argument on the
issue. See Martinez, 2023-NMCA-049, ¶ 36.
{6} In contrast, here Petitioner has adequately developed an argument on this point.
Petitioner contends that the AHO lacked the authority to unilaterally “change” or
suspend Section 66-8-112(B)’s guarantee, and in so doing it violated separation of
powers principles by “encroach[ing] upon the authority of the [L]egislature.” In essence,
Petitioner argues that by denying this statutory right, the AHO, which is a part of the
executive branch, effectively changed the law—a quintessentially legislative function.
3SeeErreur ! Document principal seulement. https://www.governor.state.nm.us/wp-
content/uploads/2020/03/COVID-19-DOH-Order-fv.pdf.
{7} Petitioner contends that neither the PHEO nor the relevant emergency powers
statutes “confer upon the AHO the power to change or ignore the law in an emergency.”
As it relates to the PHEO, we agree with Petitioner to the extent that the PHEO itself
does not explicitly state whether its provisions can function to override a statutory right.
As for the emergency powers statutes, we also agree with Petitioner to the extent that
nothing in the text of the relevant emergency powers statutes (Public Health Emergency
Response Act (PHERA), NMSA 1978, §§ 12-10A-1 to -19 (2003, as amended through
2015)); All Hazard Emergency Management Act (AHEMA), NMSA 1978, §§ 12-10-1 to -
10 (1959, as amended through 2007)); or the supporting nonemergency statutes (Public
Health Act (PHA), NMSA 1978, §§ 24-1-1 to -44 (1973, as amended through 2019);
Department of Health Act (DOHA), NMSA 1978, §§ 9-7-1 to 18 (1977, as amended
through 2019)) explicitly gives executive branch officials the power to alter or suspend
statutes during an emergency.
{8} Petitioner also cites State ex rel. Riddle v. Oliver, 2021-NMSC-018, 487 P.3d
815. In Riddle, a group of county clerks (with a stipulation from the New Mexico
Secretary of State) petitioned our Supreme Court to issue a writ of mandamus that
would compel the Secretary of State to mail absentee ballots directly to all registered
voters for the 2020 primary election. Id. ¶¶ 1, 12-15. The petitioners argued that this ad
hoc election procedure was necessary because, due to the COVID-19 pandemic, “it
would be impossible to safely conduct in-person voting.” Id. ¶ 12. Despite
acknowledging these safety concerns, the Court declined to issue the stipulated writ
because mailing absentee ballots directly to all registered voters was expressly
prohibited by the Election Code. Id. ¶¶ 3, 37-38. When the petitioners asked the Court
to rely on its equitable powers to “to craft a remedy that departed from the statutory
scheme in order to protect public health,” id. ¶ 38, the Court again declined to do so,
stating: “Our equitable powers do not extend so far as to allow us to disregard
procedures set forth by statute or to rearrange the Election Code. To do so would
violate the separation of powers.” Id. ¶ 40. Petitioner reads Riddle to stand for the
proposition that statutory mandates cannot be ignored or altered by a nonlegislative
governmental branch simply because of concerns related to public health—no matter
how valid those concerns might be.
{9} As these arguments make clear, Petitioner in this appeal does not contend that
the PHEO itself was invalid. Rather, he argues that “the PHEO was unconstitutional as
applied in this case”—i.e., that the PHEO cannot be applied in a manner that suspends
Petitioner’s statutory right. This argument, as we have seen, is mainly rooted in (1) an
apparent lack of explicit textual or statutory authority for executive emergency powers
actions to override or suspend statutes, and (2) reasoning from Riddle that suggests
that statutory mandates cannot be set aside by nonlegislative actors solely on grounds
related to public health concerns.
{10} The New Mexico Department of Taxation and Revenue (the Department) does
not persuasively respond to Petitioner’s arguments. The Department devotes much of
its answer brief to arguing that Section 66-8-112(B) does not actually require an in-
person hearing. In support of this contention, the Department offers a plain language
analysis of the statute, noting that the text only requires that the hearing “shall be held in
the county in which the offense for which the person was arrested took place” Id.
However, this argument is foreclosed by precedent; this Court has held that the
statutory language requires an in-person hearing. Evans, 1996-NMCA-080, ¶ 14. The
Department goes on to argue that this precedent is not binding here because the
“circumstances before [this] Court are substantially different than those present in
Evans.” We are not persuaded that Evans’ construction of Section 66-8-112(B)—are
rooted in legal principles concerning the need for credibility assessments, see, e.g.,
Evans, 1996-NMCA-080, ¶ 13—is somehow context-dependent, and the Department
offers no compelling argument for this proposition. Moreover, the Department has not
asked us to overrule Evans, which remains valid law. See Martinez, 2023-NMCA-049, ¶
34.
{11} Next, the Department attempts to more squarely confront Petitioner’s separation
of powers argument. However, in so doing, the Department offers no analysis of the
PHERA, the AHEMA, the PHA, or the DOHA; nor does it craft any argument as to why
or how these statutes—explicitly or implicitly—confer upon the executive branch the
power to suspend or modify statutes during an emergency. Instead, the Department
simply states that “our Supreme Court held the PHEOs to be legitimate exercises of
authority granted by the Legislature to the executive. Accordingly, the AHO cannot have
violated the separation of powers by acting in accordance with the PHEOs.” We are not
persuaded that this conclusion necessarily follows from its premise. In short, we do not
believe that the fact that our Supreme Court has upheld the power of the executive
under the PHEOs—in certain circumstances—necessarily answers the question of
whether the PHEOs were unconstitutional when applied in a manner that deprived
Petitioner of his statutory right under Section 66-8-112(B). To further illustrate, we briefly
discuss a case on which the Department relies: Grisham v. Reeb, 2021-NMSC-006, 480
P.3d 852.
{12} In Reeb, our Supreme Court was called upon to answer the following question
regarding executive authority during the public health emergency: “Did New Mexico’s
Legislature empower [executive branch officials] to enforce public health emergency
orders restricting business operations through the civil penalty provision contained in
Section 12-10A-19 of the . . . PHERA?” Id. ¶ 1. The Court answered this question in the
affirmative, holding that the PHERA and its “concurrent and complementary statutes”
authorized the Secretary of Health to issue PHEOs that restricted private business
operations, and also that the PHERA’s civil penalty provision, Section 12-10A-19, could
be applied to enforce those restrictions. Reeb, 2021-NMSC-006, ¶¶ 1, 15. The Court
reached these legal conclusions based on an in-depth construction of the PHERA and
other relevant statutes. See id. ¶¶ 25-44. However, in Reeb, the Court did not explicitly
discuss whether a PHEO’s mandates would prevail if those mandates came into conflict
with a statutory right, as that question was not before the Court. We note that cases are
not authority for propositions not considered, Sangre de Cristo Dev. Corp. v. City of
Santa Fe, 1972-NMSC-076, ¶ 23, 84 N.M. 343, 503 P.2d 323, and the Department has
not offered any argument as to why Reeb’s holdings—or the rationale used to reach
those holdings—would allow the Department not to comply with a clear statutory
mandate. We decline to develop such an argument for the Department. See Elane
Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“To rule on an
inadequately briefed issue, [the] Court would have to develop the arguments itself,
effectively performing the parties’ work for them.”).
{13} The Department’s attempt to distinguish Riddle is unpersuasive for similar
reasons. The Department argues that Petitioner’s reliance on Riddle is “misplaced”
because the proposed nonlegislative action in that case was contrary to the Election
Code, which “contains dozens of specific statutory mandates concerning the conduct of
elections” and “hundreds of individual provisions,” whereas Section 66-8-112(B) is
merely “a single sentence in a single statutory provision interpreted [twenty-eight] years
ago to prohibit [the Department] from conducting telephonic license revocation hearings
as a cost savings measure.” The Department offers no argument as to why the length or
complexity of a statute is a significant factor in assessing whether it can be suspended
or altered by nonlegislative action during an emergency, and we see no sound basis for
drawing such a distinction. Although it is possible that Riddle is distinguishable on some
other ground, the Department makes no argument to this effect in either its answer brief
or its supplemental brief, and we decline to develop such on argument on the
Department’s behalf. See Elane Photography, 2013-NMSC-040, ¶ 70.
{14} The Department’s final argument is that, when two legal requirements conflict,
“the court resolving the conflict must determine whether, under the specific
circumstances presented, compliance with the first or the second provision is most
consistent with the public good.” Pursuant to this theory, the Department offers various
rationales for why the COVID-19 related suspension of in-person license revocation
hearings amounted to good policy. Even if we were to agree with these statements of
policy, the Department has offered no legal argument as to why the statutory guarantee
of Section 66-8-112(B) may be trumped by a judicial determination that complying with
that guarantee would not be “consistent with the public good.” In the absence any
argument or authority to support such an approach, we decline to adopt it.
CONCLUSION
{15} Based on the arguments presented by the parties in this case, we reverse and
remand this matter to the AHO so that Petitioner may receive an in-person license
revocation hearing as required by Section 66-8-112(B).
{16} IT IS SO ORDERED.
ZACHARY A. IVES, Judge
WE CONCUR:
KRISTINA BOGARDUS, Judge
MICHAEL D. BUSTAMANTE, Judge,
retired, Sitting by designation