N.M. R. App. P. 12-601
N.M. R. App. P. 12-601
Committee commentary. - New Paragraphs C and D were added in 2013 in response to the New Mexico Supreme Court's opinion in New Energy Economy, Inc. v. Vanzi, 2012-NMSC-005, 274 P.3d 53, which addresses what level of participation in an administrative proceeding is required before a participant may be considered a "party" that is entitled to notice of an appeal challenging the administrative action and is permitted, but not required, to intervene as an appellee for the purpose of defending the action. The Court held that those who participated in a "legally significant manner" in a rulemaking proceeding before the administrative tribunal have the right to participate as parties to an appeal. Id. ¶ 47. Providing technical testimony or the kind of evidence that directly informs the inquiries of the rulemaking tribunal in reaching its decision are listed as non-exclusive examples of the types of evidence that support finding a "legally significant" contribution to a rulemaking proceeding. Id. ¶¶ 37-39. In an adjudicatory proceeding, the general rule is that only parties to the administrative proceeding are entitled to notice or have a right to participate in an ensuing appeal. Id. ¶ 56.
The new paragraphs are largely based upon the particular factual and procedural setting of New Energy Economy and, in other cases, should be applied with consideration of the factors that the Supreme Court considered important to determining whether participation in a rulemaking process was "legally significant."
The appellate court hearing the appeal may take reasonable steps to encourage efficiency and avoid unnecessary duplication in the event of a considerable number of intervening parties, e.g. by ordering consolidated briefing from similarly situated parties. Id. ¶¶ 48-50.
[Adopted by Supreme Court Order No. 13-8300-032, effective for all cases pending or filed on or after December 31, 2013.]
.ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-016, effective December 31, 2018, provided that the additional 3-day period set forth in Rule 12-308(B) NMRA does not apply to the time limits for filing a notice of appeal; in Paragraph B, after "action appealed from", added "The additional three (3)-day period provided in Rule 12-308(B) NMRA for certain kinds of service shall not apply to the time limits for filing a notice of appeal under this paragraph.". The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, in the heading, after "administrative", deleted "entities" and added "decisions where the right to appeal is provided by statute"; in Paragraph (B), after "proof of service", deleted "thereof", deleted "Thereafter, within" and added "Within", and after "appeal shall", deleted "thereafter"; and in Paragraph (E), after "to be made", deleted "upon" and added "on". The 2013 amendment, approved by Supreme Court Order No. 13-8300-032, effective December 31, 2013, provided that the rule applies to rulemaking and adjudicatory proceedings; granted participants in rulemaking proceedings and adjudicatory proceedings the right to intervene in appeals as a party-appellee; provided for a grace period when a notice of appeal is sent by mail or commercial carrier; in the title, added "Direct" before "appeals" and after "entities", deleted "and special statutory proceedings"; in Paragraph A, added the second sentence; in Paragraph B, in the first sentence, after "agency involved and all parties", added "and participants entitled to notice under Paragraphs C and D of this rule"; and added Paragraphs C, D, and F. The 2007 amendment, approved by Supreme Court Order No. 07-8300-019, effective August 13, 2007, amended Paragraph B to remove "or complaint on appeal" in two places following "notice of appeal". The 2000 amendment, effective June 15, 2000, deleted "or removal proceedings" following "petitions for writs" near the end of the last sentence of Paragraph A. The 1998 amendment, effective for pleadings due on and after April 1, 1998, inserted "in the Court of Appeals or a statement of the issues in the Supreme Court" near the end of Paragraph B. Right to participate in appeal of administrative rule-making. - Persons who have participated in a legally significant manner in an administrative rule-making proceeding have the right to participate as parties to an appeal if they express such an intention. New Energy Economy, Inc. v. Vanzi, 2012-NMSC-005, 274 P.3d 53. Where petitioners in administrative rule-making proceedings initiated the proceedings, proposed or supported the adoption of new rules, presented the kind of evidence that directly informed the administrative agencies' decisions on whether to adopt the new rules, submitted expert technical testimony and exhibits, and made legal and closing arguments in support of the new rules; under the statutes and rules governing the rule-making process of administrative agencies, petitioners were considered to be "parties" to the proceedings and assumed roles that imposed additional responsibilities and preparation on them that were not imposed on participants; participants in the administrative proceedings appealed the adoption of the new rules; and the Court of Appeals denied petitioners the right to intervene as parties in the appeals, the Court of Appeals did not have the discretion to deny intervention for the petitioners because the requirements imposed upon petitioners as parties in the rule-making proceedings, the contributions they made, highlighted by their technical testimony, and the possible challenge to those contributions on appeal, afforded petitioners a right to defend their positions on appeal. New Energy Economy, Inc. v. Vanzi, 2012-NMSC-005, 274 P.3d 53. Extension of time to file notice of appeal. - Rule 12-601 NMRA applies to requests for extensions of time to file a notice of appeal challenging a decision by the workers' compensation administration and a workers' compensation judge does not have authority to grant an extension of time to file a notice of appeal. Schultz v. Pojoaque Tribal Police Dep't, 2010-NMSC-034, 148 N.M. 692, 242 P.3d 259. Where petitioner mailed a notice of appeal four days before the filing deadline, but the notice of appeal was filed two days after the filing deadline, the workers' compensation judge did not have authority under Rule 12-601 NMRA to grant petitioner's unopposed motion for an extension of time to file the notice of appeal. Schultz v. Pojoaque Tribal Police Dep't, 2010-NMSC-034, 148 N.M. 692, 242 P.3d 259. Late filing of notice of appeal caused by delayed mail was excusable. - Where petitioner mailed a notice of appeal by certified mail from Albuquerque to the Court of Appeals in Santa Fe four days before the filing deadline, but the notice of appeal was not received by the Court of Appeals until two days after the filing deadline; petitioner reasonably believed that the notice of appeal would arrive within four days; the unexpected delay was caused by the United States Postal Service and constituted an unusual circumstance outside petitioner's control; and the delay was marginal, petitioner's untimely filing of the notice of appeal should be excused. Schultz v. Pojoaque Tribal Police Dep't, 2010-NMSC-034, 148 N.M. 692, 242 P.3d 259. Workers' compensation cases. - Section 39-1-1 NMSA 1978 applies to workers' compensation cases such that the time for filing a notice of appeal does not commence to run until after a workers' compensation judge disposes of a pending post-trial motion. Since Section 39-1-1 NMSA 1978 applies to workers' compensation cases, so does Rule 12-201(D) NMRA, which explicitly incorporates the provisions of Section 39-1-1 NMSA 1978. Under Rule 12-201(D), the time for filing a notice of appeal does not begin to run until a district court expressly denies a pending post-trial motion. Bianco v. Horror One Productions, 2009-NMSC-006, 145 N.M. 551, 202 P.3d 810. Notice of appeal from a final disposition order of the workers' compensation administration had to be filed within 30 days from the date of the order as provided in Paragraph A, rather than within 30 days of mailing of the final order, provided in 52-5-8 NMSA 1978. Tzortzis v. County of Los Alamos, 1989-NMCA-031, 108 N.M. 418, 773 P.2d 363. This rule is the controlling rule in appeals from workers' compensation actions. Maples v. State, 1990-NMSC-042, 110 N.M. 34, 791 P.2d 788. Workers' compensation appeals are not exempted from the jurisdictional requirements of Paragraph B. Singer v. Furr's, Inc., 1990-NMCA-120, 111 N.M. 220, 804 P.2d 411. Even though a notice of appeal was the same notice that was filed with the worker's compensation administration (WCA) and contained a WCA caption and case number, the court of appeals had jurisdiction to resolve the appeal since the notice was timely filed and substantially complied with the provisions of Paragraph B. Mieras v. Dyncorp, 1996-NMCA-095, 122 N.M. 401, 925 P.2d 518. Former rule did not confer a right of appeal, because the right of appeal is a matter of substantive law and outside the supreme court's rule-making power. Durand v. New Mexico Comm'n on Alcoholism, 1976-NMCA-077, 89 N.M. 434, 553 P.2d 714 (decided under former Rule 13, N.M.R. App. P. (Civ.)) Former Rule 13, N.M.R. App. P. (Civ.) did not apply to an appeal from a district court to an appellate court and exception could not be used to apply statutory time limit over procedural time limit for filing appeals. AAA v. SCC, 1985-NMSC-037, 102 N.M. 527, 697 P.2d 946. Rights enforced under rule. - "Special statutory proceedings" under Rule 5(6) of former Supreme Court Rules were statutory proceedings to enforce rights and remedies created by statute and unknown to the common-law and equity practice of England prior to 1776. In re Forest, 1941-NMSC-019, 45 N.M. 204, 113 P.2d 582. Phrase "Notwithstanding any other provision of law" in Paragraph B refers to any other laws addressing appellate procedure and does not confer a substantive right of appeal that is not otherwise provided by law. Hillhaven Corp. v. State Human Servs. Dep't, 1989-NMCA-024, 108 N.M. 372, 772 P.2d 902. Copy of notice of appeal sufficient. - In appealing from a workers compensation administration ruling it is sufficient under Paragraph B to file the notice of appeal with the appellate court and a copy of the notice with the administration within 30 days, and then file a notice with the administration at a later time. Brewster v. Cooley & Assocs., 1993-NMCA-154, 116 N.M. 681, 866 P.2d 409. Effect of failure to comply with place-of-filing requirement. - Workers' compensation claimant's failure to comply with the place-of-filing requirement of Paragraph B deprived the court of appeals of jurisdiction, even though claimant filed a notice of appeal with the workers' compensation division within thirty days of the filing of the order dismissing his claim for benefits. Singer v. Furr's, Inc., 1990-NMCA-120, 111 N.M. 220, 804 P.2d 411. Appeal allowed. - Appeal by state board of embalmers and funeral directors from district court judgment which set aside board's order was allowed under Rule 5(6) of former Supreme Court Rules. Gonzales v. New Mexico State Bd. of Embalmers & Funeral Dirs., 1957-NMSC-047, 63 N.M. 13, 312 P.2d 541. Appeal denied. - Where district attorney asked court to order issuance of subpoenas for certain witnesses, based on congressional investigation committee report on use of federal funds in construction of highways, such action was not considered special statutory proceedings within the meaning of Rule 24 of former Supreme Court Rules. State v. Wylie, 1963-NMSC-035, 71 N.M. 447, 379 P.2d 86. Review of condemnation proceeding. - In proceeding by coal company for condemnation, for mining purposes, of certain rights-of-way over lands of defendant, final judgment for condemnation was not appealable, as the proceeding was special and the applicable statute did not provide for appeal under former appellate procedure. Gallup Sw. Coal Co. v. Gallup Am. Coal Co., 1934-NMSC-070, 39 N.M. 94, 40 P.2d 627 (but holding on motion for rehearing that cause could proceed on application for certiorari). Fair hearing decision of Human Services Department. - Under former Subsection A of 27-3-4 NMSA 1978, because the requirement of the time for filing notice of appeal from a fair hearing decision of the Human Services Department lay within the supreme court's rule-making authority, and because it was covered by supreme court rules, the rule rather than the statute applied and the time ran from the date of the decision under Paragraph A of this rule, not from receipt of the decision under former Subsection A of 27-3-4 NMSA 1978. James v. New Mexico Human Serv. Dep't, 1987-NMCA-105, 106 N.M. 318, 742 P.2d 530. Review of constitutionality of regulatory act not authorized. - The court of appeals was without authority to review the constitutionality of the New Mexico Mining Act in the case of an appeal challenging regulations on their face. Old Abe Co. v. New Mexico Mining Comm'n, 1995-NMCA-134, 121 N.M. 83, 908 P.2d 776. Rule 12-201 NMRA governs filing of cross-appeals. - This rule does not provide that the Rules of Appellate Procedure governing appeals from the district court do not commence to apply until after the filing of the docketing statement by the appellant in an administrative appeal. Nothing in this rule authorizes a party to file his notice of cross-appeal more than ten days from the date the appellant files its notice of appeal, as provided by Rule 12-201A NMRA. Rodriguez v. McAnally Enters., 1994-NMCA-025, 117 N.M. 250, 871 P.2d 14. Law reviews. - For 1984-88 survey of New Mexico administrative law, 19 N.M.L. Rev. 575 (1990). For survey of 1990-91 appellate procedure, see 22 N.M.L. Rev. 623 (1992). Am. Jur. 2d, A.L.R. and C.J.S. references. - 2 Am. Jur. 2d Administrative Law § 639 et seq. 73A C.J.S. Public Administrative Bodies and Proceedings §§ 208 to 212.