N.M. R. App. P. 12-505
N.M. R. App. P. 12-505
ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-016, effective December 31, 2018, clarified the language regarding the additional 3-day period set forth in Rule 12-308(B) NMRA, provided for additional documentary matters of record that may be attached to a petition; in Paragraph C, after "three (3)-day", deleted "mailing"; and in Subparagraph D(3), added the last sentence of the subparagraph relating to other documentary matters of record. The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, clarified that the rule applies to certiorari from the Court of Appeals for review of certain administrative decisions by the district court, prohibited the filing of a reply to a petition for writs of certiorari without leave of the Court, provided the procedures for filing a motion seeking leave to file a reply, and made stylistic and technical changes; in the heading, deleted "to the district court; decisions on review of" and added "from the Court of Appeals regarding district court review of", and after "administrative", added "agency"; in Subparagraph (A)(1), after "administrative appeals", deleted "pursuant to" and added "under"; in Subparagraph (A)(2), after "administrative agencies", deleted "pursuant to" and added "under"; in Subparagraph (D)(3), deleted "The petition shall have attached", after "decision leading", deleted "thereto" and added "to the final order or judgment", and after "in the district court", added "shall be attached to the petition"; in Subparagraph (E)(2), after "Subparagraph", added (E), and after "(3)", deleted "of Paragraph E"; in Paragraph (F), after "page limitations of", deleted "subparagraph (2) of Paragraph E" and added "Subparagraph (E)(2)", after "with the limitations of Subparagraph", added "(E)", after "(3)", deleted "of Paragraph E", and after "defined in Subparagraph", added "(E)", and after "(1)", deleted "of Paragraph E"; in Paragraph (G), after "except", deleted "as provided in"; in Paragraph (I), after the second sentence, deleted "No other response may be submitted."; in Paragraph (J), added new language regarding replies to responses to writs, and redesignated the language of former Paragraph (J) as Paragraph (K), and redesignated the succeeding paragraphs accordingly; in Paragraph (K), deleted "Upon" and added "On"; and in Paragraph (M), after "Supreme Court", deleted "pursuant to" and added "under", and after "NMRA", deleted "of these rules". The 2009 amendment, approved by Supreme Court Order No. 09-8300-020, effective September 4, 2009, in Subparagraph (1) of Paragraph A, added the reference to Rule 1-077 NMRA; in Paragraph C, in the first sentence, after "Court of Appeals within", changed the time from twenty to thirty days; in the third sentence, deleted "Unless the petition has been filed by the state, a political subdivision of the state, a defendant determined to be indigent by the district court or a defendant represented by a public defender or court-appointed counsel" and added "Subject to the provisions of Rule 12-304 NMRA and Rule 23-113 NMRA"; in Paragraph D, deleted "contents" from the title, deleted the former first sentence which provided that the petition shall not exceed ten pages, shall have attached a copy of the final order or judgment and any findings or decision leading to the final order or judgment, and a copy of the administrative decision under review by the district court; in Paragraph D, added the subparagraph number and title for Subparagraph (1); in Subparagraph (1) of Paragraph D, after "with the plaintiff, petitioner" added "or party initiating the proceeding" and after the parenthesis, added the remainder of the sentence; in Paragraph D, added the Subparagraph number and title for Subparagraph (2); deleted former Subparagraph (2) of Paragraph D that required a copy of the appellant's and appellee's statements of appellate or review issues filed in the district court to be attached to the petition; in Item (b) of Subparagraph (2) of Paragraph D, after "Court of Appeals", in the parenthesis, added "the Court will consider", and after "set forth in the petition", deleted "will be considered by the Court"; in Sub-item (i) of Item (d) of Subparagraph (2) of Paragraph D, in two instances, changed "opinion" to "decision"; in Item (e) of Subparagraph (2) of Paragraph D, after "reasons relied upon for", deleted "allowing of" and added "granting"; added Subparagraph (3) of Paragraph D; added Paragraph E and Subparagraph F; in Subparagraph G, added the second sentence and in the fifth sentence, after "except as provided in", deleted "this paragraph" and added "Paragraph C"; in Paragraph I, in the second sentence, after "The response shall", deleted "not exceed ten (10) pages in length" and added "comply with Paragraphs E and F of this rule", and in the last sentence, after "may be submitted", deleted "other than a motion directed to a jurisdictional defect in the petition"; and in Paragraph L, changed the time from twenty days to thirty days. The 2006 amendment, approved by Supreme Court Order No. 06-8300-011, effective May 15, 2006, substitutes "or" for "and" in Subparagraph (1) of Paragraph A. The 2003 amendment, effective November 1, 2003, inserted present Paragraph E and redesignated former Paragraphs E to I as present Paragraphs F to J. The 2002 amendment, effective September 1, 2002, inserted "and any district court findings or decision leading thereto, as well as a copy of the administrative decision under review by the district court" at the end of the first sentence in Paragraph D; deleted "or within fifteen (15) days of the granting of the petition" at the end of the first sentence of Paragraph F; renumbered former Paragraphs I and J as present Paragraphs H and I and deleted former Paragraph H which read "Briefs. In the event the writ of certiorari is issued, additional briefs may be filed only as directed by the appellate court" and deleted Paragraph K which read "Failure to act. Unless otherwise ordered by the Court, any petition for a writ of certiorari not acted upon by the Court in which it is filed within thirty (30) days after filing shall be deemed denied."
For the review of final decisions of state agencies, see Section 39-3-1.1 NMSA 1978. For the review of final decisions of state agencies, see Section 39-3-1.1 NMSA 1978. For review of final decisions of state agencies by the district courts, see Rules 1-074 to 1-076 NMRA. Standard of review. - This rule provides four bases for the Court of Appeals to consider a petition for writ of certiorari with regard to the review of a district court's review of a decision of an administrative agency. Rio Grande Chapter of Sierra Club v. New Mexico Mining Comm'n, 2003-NMSC-005, 133 N.M. 97, 61 P.3d 806. Scope of review. - The scope of review of the decision of an administrative agency by the Court of Appeals and Supreme Court is the same as the scope of review of the district court, i.e. whether the ruling of the administrative agency is arbitrary, capricious, an abuse of discretion, not supported by sbustantial evidence or not otherwise in accordance with law. Rio Grande Chapter of Sierra Club v. New Mexico Mining Comm'n, 2003-NMSC-005, 133 N.M. 97, 61 P.3d 806. Interpretation of a statute by an administrative agency or the district court is subject to a de novo review by the Court of Appeals or Supreme Court. Rio Grande Chapter of Sierra Club v. New Mexico Mining Comm'n, 2003-NMSC-005, 133 N.M. 97, 61 P.3d 806. Administrative agency's decision not in accordance with law. - In consolidated cases where three former State of New Mexico employees were denied unemployment compensation benefits by the New Mexico Department of Workforce Solutions (department), based on Section 51-1-44(A)(5)(a) NMSA 1978, the court of appeals' review of the district courts' decisions from the administrative appeals found that the department's determinations, that all three employees held major non-tenured policy-making or advisory positions that were ineligible for unemployment compensation benefits, was not in accordance with law. Perez v. N.M. Dep't of Workforce Solutions, 2015-NMSC-008, rev'g 2014-NMCA-035. Motion denied by operation of law. - There is no provision within this rule which provides that a motion not acted upon by the district court within a certain amount of time is deemed denied by operation of law. Paule v. Santa Fe Cnty., 2005-NMSC-021, 138 N.M. 82, 117 P.3d 240. Paragraph A(1) of rule is consistent with language in 39-3-1.1 NMSA 1978 that directs review of district court decisions by an appellate court. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680. And governs procedure by which aggrieved party may seek review in the Court of Appeals of a district court's determination based on a Rule 1-074 NMRA appeal authorized by 39-3-1.1 NMSA 1978. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680. Extension of time to file a non-conforming petition. - When a party mistakenly files a notice of appeal and, after the time for filing a petition has passed, the party seeks an extension of time to file the docketing statement, an order of the Court of Appeals extending the time to file the docketing statement will not automatically excuse the untimely filing of the non-conforming document that is to be construed as a petition. An extension that the Court of Appeals would not have granted if it were clear that what was actually being requested was that the Court excuse the untimely filing of a non-conforming petition will not itself excuse the late filing. When the request for an extension of time to file the docketing statement is made after the time for filing a petition for writ of certiorari has passed and if the Court has granted the motion for the extension, the Court will excuse the late filing only when the party's motion or other documents filed in the Court of Appeals demonstrate the kind of unusual circumstances warranting the acceptance of an untimely filing. Audette v. City of Truth or Consequences, 2012-NMCA-011, 270 P.3d 1273, cert. denied, 2011-NMCERT-012. Non-conforming petition was timely. - Where, in an administrative appeal from the decision of a city zoning commission, petitioners filed a notice of appeal from the order of the district court; the docketing statement substantially complied with the content requirements for a petition for writ of certiorari; the non-conforming petition was not filed within thirty days of the district court's order; and petitioners requested and were granted an extension of time to file the docketing statement prior to the thirty-day deadline for filing a petition, the non-conforming petition was timely. Audette v. City of Truth or Consequences, 2012-NMCA-011, 270 P.3d 1273, cert. denied, 2011-NMCERT-012. Issues justifying writ. - The standard of when museum property is used for education purposes and its application to the facts in this case and consideration of the standard and exceptions to it are issues that bring this case within certiorari jurisdiction under this rule. Georgia O'Keeffe Museum v. County of Santa Fe, 2003-NMCA-003, 133 N.M. 297, 62 P.3d 754. Proceedings prior to effective date of rule. - Final district court orders following appeals of decisions of administrative agencies were entered after the effective dates of 39-3-1.1 NMSA 1978 and this rule. Therefore cases before the court of appeals for review were not "pending" cases within the meaning of N.M. Const., art. IV, § 34. Hyden v. New Mexico Human Servs. Dep't, 2000-NMCA-002, 128 N.M. 423, 993 P.2d 740. Appeals from district court. - Appeals from the district court arising out of objection to a state engineer permit to transfer water rights under 72-7-3 NMSA 1978 are governed by Rule 12-201 NMRA rather than this rule. Town of Silver City v. Scartaccini, 2006-NMCA-009, 138 N.M. 813, 126 P.3d 1177. Time for filing notice of appeal. - Even though appellants failed to comply with the 20-day time limit imposed by this rule for seeking review on certiorari, extensions were granted where they were sought because of confusion surrounding the enactment and publication of the rule. Hyden v. New Mexico Human Servs. Dep't, 2000-NMCA-002, 128 N.M. 423, 993 P.2d 740. A notice of appeal will not be accepted as a substitute for a petition for writ of certiorari because a notice of appeal does not contain a statement of the issues sought to be reviewed and a discussion of the facts material to the question presented. Wakeland v. New Mexico Dep't of Workforce Solutions, 2012-NMCA-021, 274 P.3d 766, cert. denied, 2012-NMCERT-001. Notice of appeal treated as a petition for writ. - Where petitioner filed a notice of appeal twelve days after the entry of the district court's order affirming the Motor Vehicle Division's revocation of petitioner's driver's license pursuant to the Implied Consent Act; thirty-four days after the entry of the district court's order, petitioner filed a docketing statement requesting, for the first time, a writ of certiorari to review the district court's decision; and the district court's order was conflicting regarding whether the court exercised appellate or original jurisdiction, the Court of Appeals, in its discretion, could elect to treat the notice of appeal as a petition for a writ of certiorari because the notice of appeal was filed within twenty days after the district court's final action. Glynn v. New Mexico Taxation & Revenue Dep't, 2011-NMCA-031, 149 N.M. 518, 252 P.3d 742, cert. denied, 2011-NMCERT-003, 150 N.M. 666, 265 P.3d 717. Court of Appeals may, at its discretion, elect to treat a notice of appeal as a petition for writ of certiorari if the notice of appeal was filed within twenty days after the district court's final action. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680. A docketing statement that complies with the requirements of Rule 12-208 NMRA will be accepted as a substitute for a petition for writ of certiorari. Wakeland v. New Mexico Dep't of Workforce Solutions, 2012-NMCA-021, 274 P.3d 766, cert. denied, 2012-NMCERT-001. Time for filing a non-conforming document. - A non-conforming document, such as a docketing statement, must be filed within the time required by Rule 12-505 NMRA for filing a petition for writ of certiorari. The court will not excuse the untimely filing of a non-conforming document absent a showing of the kind of unusual circumstances that would justify an untimely petition. Wakeland v. New Mexico Dep't of Workforce Solutions, 2012-NMCA-021, 274 P.3d 766, cert. denied, 2012-NMCERT-001. Non-conforming petition was not timely filed. - Where the district court filed an order affirming an administrative decision on December 22, 2010; petitioner filed a notice of appeal in district court on January 3, 2011, and a docketing statement in the Court of Appeals on January 28, 2011, within the deadlines provided under Rules 12-201 and 12-108 NMRA; and the docketing statement contained information that was sufficient to determine whether the issues met the requirements for granting a petition for writ of certiorari, the non-conforming petition was untimely because it was not filed within thirty days of the filing of the district court's order. Wakeland v. New Mexico Dep't of Workforce Solutions, 2012-NMCA-021, 274 P.3d 766, cert. denied, 2012-NMCERT-001. Uncertainty about the proper procedure for seeking review by petition for writ of certiorari is not an unusual circumstance that will excuse the untimely filing of a non-conforming document as a substitute for a petition for writ of certiorari. Wakeland v. New Mexico Dep't of Workforce Solutions, 2012-NMCA-021, 274 P.3d 766, cert. denied, 2012-NMCERT-001. Uncertainty about the proper procedure did not excuse untimely filing of a petition. - Where the district court affirmed an administrative decision in an unemployment compensation case under Section 51-1-8 NMSA 1978; respondent appealed the district court's order and filed a docketing statement which was construed as a petition for writ of certiorari; the docketing statement was filed more than thirty days after the filing of the district court order; and respondent claimed that respondent should be excused for filing an untimely petition because nothing in Section 51-10-8 NMSA 1978 or Rule 1-077 NMRA specifically refers to Rule 12-505 NMRA and respondent was not on notice that Rule 12-505 NMRA applied, respondent's confusion or uncertainty about the appropriate procedure for seeking review was not an unusual circumstance that would excuse the late filing. Wakeland v. New Mexico Dep't of Workforce Solutions, 2012-NMCA-021, 274 P.3d 766, cert. denied, 2012-NMCERT-001. Docketing statement was untimely. - Where plaintiff appealed the district court's order that affirmed the decision of a municipal personnel board that the municipality had just cause to terminate plaintiff and that dismissed plaintiff's claims for breach of contract, violation of due process, and for violation of the Family Medical Leave Act; plaintiff's docketing statement included the administrative appeal; plaintiff filed the docketing statement sixty days after the filing of the district court order; and plaintiff did not argue that unusual circumstances justified the untimely filing of the docketing statement as a non-conforming petition for writ of certiorari, the Court of Appeals did not have jurisdiction to address the administrative appeal. Mascarenas v. City of Albuquerque, 2012-NMCA-031, 274 P.3d 781. An attorney's illness is not an unusual circumstance that would warrant the late filing of a petition for writ of certiorari. Bransford-Wakefield v. New Mexico Taxation & Revenue Dep't, 2012-NMCA-025, 274 P.3d 122. Extension of time to file certiorari petition. - A district court had no authority to extend the time for plaintiffs to file a certiorari petition in the Court of Appeals. Cassidy-Baca v. Board of County Comm'rs of Sandoval County, 2004-NMCA-108, 136 N.M. 307, 98 P.3d 316. Only unusual circumstances will justify the Court of Appeals' exercise of discretion to grant motions to extend the time to file petitions for certiorari. Cassidy-Baca v. Board of Cnty. Comm'rs of Sandoval Cnty., 2004-NMCA-108, 136 N.M. 307, 98 P.3d 316. Untimely filing of petition for writ of certiorari was not excused. - Where petitioner, who filed a petition for writ of certiorari one day late, asked the Court of Appeals to excuse the untimely filing on the ground that petitioner's attorney became ill and did not realize that the deadline had passed, the attorney's unanticipated illness was not an unusual circumstance that would warrant waiving the timeliness requirement that is a mandatory precondition to the exercise of the Court of Appeals' jurisdiction. Bransford-Wakefield v. New Mexico Taxation & Revenue Dep't, 2012-NMCA-025, 274 P.3d 122.