1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: __________
3 Filing Date: August 19, 2015
4 NO. 33,065
5 THE NATIONAL EDUCATION
6 ASSOCIATION OF NEW MEXICO,
7 NATIONAL EDUCATION
8 ASSOCIATION–SANTA FE, and
9 TERENCE MIRABAL,
10 Petitioners-Appellees,
11 v.
12 SANTA FE PUBLIC SCHOOLS,
13 DR. JOEL D. BOYD, Superintendent,
14 Respondents-Appellants.
15 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
16 Sarah M. Singleton, District Judge
17 Jones, Snead, Wertheim & Clifford, P.A.
18 Jerry Todd Wertheim
19 Elizabeth C. Clifford
20 Santa Fe, NM
21 for Appellee
1 Walsh, Anderson, Gallegos, Green & Treviño P.C.
2 Carol S. Helms
3 Elena P. Serna
4 Albuquerque, NM
5 for Appellant
1 OPINION
2 KENNEDY, Judge.
3 {1} This case requires us to interpret certain provisions of the School Personnel
4 Act. We hold that the “harmless error” provision of NMSA 1978 Section 22-10A-
5 28(L) (2003) applies to allow the late filing of a notice requesting a hearing on a
6 discharge notice, under Section 22-10A-27(B). We therefore affirm the permanent
7 writ of mandamus.
8 I. Background
9 {2} On February 26, 2013, the superintendent of the Santa Fe Public Schools
10 (SFPS) gave Mirabal a notice of intent to discharge him from his teaching and
11 coaching positions with SFPS. The notice informed Mirabal of his right to request a
12 hearing and that if he did not request a hearing within five working days from the date
13 of the notice, his discharge would become final. Mirabal was subsequently informed
14 that, due to his failure to submit a timely request for hearing, his discharge was final.
15 On March 7, 2013—two days after the deadline for doing so had passed—Mirabal
16 notified the SFPS of his intent to exercise his right to a hearing before SFPS. The
17 termination was effected and no hearing was held. Mirabal, the National Education
18 Association of New Mexico, and National Education Association–Santa Fe
19 (collectively, Petitioners) subsequently obtained an alternative writ of mandamus
1 from the district court, ordering SFPS to “[c]omply with [the] mandatory non-
2 discretionary duty to provide a discharge hearing pursuant to the School Personnel
3 Act[,]” or file a response to the writ. SFPS filed its response to the writ, along with
4 a motion to quash the writ and a motion to dismiss for lack of jurisdiction.
5 {3} The district court held a show cause hearing to address SFPS’s reasons for its
6 noncompliance with the writ. During that hearing, the parties addressed SFPS’s
7 response, motion to quash, and motion to dismiss. Petitioners argued that, although
8 Mirabal departed from the five-day time period enumerated in Section 22-10A-27(B),
9 he was entitled to a hearing applying the presumption of harmless error under Section
10 22-10A-28(L) to his late request. Thus, they asserted, SFPS was therefore required
11 to demonstrate prejudice arising from his departure from Section 22-10A-27(B)’s
12 procedures and had failed to do so. SFPS was therefore required to provide a hearing.
13 Respondents responded by arguing that there was no mandatory duty to provide a
14 hearing when the right to a hearing was not invoked by a request within the time
15 prescribed by the Legislature in Section 22-10A-27(B). In addition, Respondents
16 asserted that the requirement that a party “demonstrate prejudice” indicates there is
17 some discretion in such a decision, and that the writ—intended for non-discretionary,
18 ministerial duties—was therefore improper. SFPS also argued that Mirabal’s untimely
19 request resulted in prejudice in three ways: its interest in efficient timely
2
1 administration was prejudiced; it suffered a monetary loss; and public policy
2 prejudice resulted from creation of an ambiguity in discharge proceedings.
3 {4} The district court held that “as a matter of statutory construction,” the harmless
4 error provision of Section 22-10A-28(L) applies to this case. It reasoned that the
5 harmless error subsection explicitly includes Section 22-10A-27(B) in its
6 applicability, and concluded that “unless the school can demonstrate prejudice, an
7 employee can be late in requesting a hearing and [the] school district can be late in
8 providing a hearing unless prejudice is shown by the other side.” Determining that
9 Respondents had not demonstrated prejudice, the district court commented that the
10 arguments Respondents made to show prejudice are “arguments that generally
11 address the evils that befall not strictly enforcing time limits, and they are not the kind
12 of prejudice that was envisioned by the Legislature when writing Section 22-10A-
13 28(L).” The district court noted that the parties agreed that if the request for hearing
14 had been timely, there would have been a mandatory duty to provide a hearing and
15 that the only real issue in the case was whether the late filing somehow turned the
16 duty to provide a hearing into a discretionary duty. Concluding that the statute
17 indicated that prejudice would be determined by a “reviewing authority” and that the
18 school is not vested with the discretion not to grant a hearing, “particularly where [it
19 has] made no showing of prejudice,” the district court issued a permanent writ and
20 denied the motions to quash.
3
1 II. Discussion
2 A. Statutory Interpretation
3 {5} We apply a de novo standard of review when interpreting the School Personnel
4 Act. Aguilera v. Bd. of Educ., 2006-NMSC-015, ¶ 6, 139 N.M. 330, 132 P.3d 587;
5 N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053,
6 ¶ 19, 142 N.M. 533, 168 P.3d 105 (stating “statutory interpretation is an issue of law,
7 which we review de novo”). Our first step in this case is an analysis of whether
8 Section 22-10A-28(L), the harmless error provision, applies to the procedures
9 enumerated in Section 22-10A-27(B).
10 {6} When interpreting a statute, we attempt to discern the intent of the Legislature.
11 Starko, Inc. v. N.M. Human Servs. Dep’t, 2014-NMSC-033, ¶ 18, 333 P.3d 947,
12 Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 29, 147 N.M. 583, 227 P.3d 73 (“It
13 is the high duty and responsibility of the judicial branch of government to facilitate
14 and promote the [L]egislature’s accomplishment of its purpose.”) (first alteration,
15 internal quotation marks, and citation omitted). In order to ascertain the intent of the
16 Legislature, we employ the plain meaning rule. Truong, 2010-NMSC-009, ¶ 37.
17 “[W]hen a statute contains language which is clear and unambiguous, we must give
18 effect to that language and refrain from further statutory interpretation.” Truong,
19 2010-NMSC-009, ¶ 37 (internal quotation marks and citation omitted). As such, we
4
1 “presume[] that the words in a statutory provision have been used according to their
2 plain, natural, and usual signification and import[.]” DeMichele v. State Taxation and
3 Revenue Dep’t, 2015 NMCA___, ¶ 14, ___ P.3d ___ (No. 33,778, June 3, 2015)
4 (internal quotation marks omitted). We “[give] words their ordinary meaning, unless
5 the Legislature indicates a different one was intended.” Starko, 2014-NMSC-033, ¶
6 46 (Vigil, C.J., dissenting) (internal quotation marks omitted), and do not “read into
7 a statute language which is not there, especially when it makes sense as it is written.”
8 Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 15, 147 N.M. 512, 226 P.3d 611
9 (internal quotation marks and citation omitted). All parts of a statute must be read
10 together to accurately reflect legislative intent, and courts must “read the statute in its
11 entirety and construe each part in connection with every other part to produce a
12 harmonious whole.” Key v. Chrysler Motors Corp., 1996-NMSC-038, ¶ 14, 121 N.M.
13 764, 918 P.2d 350.
14 {7} Sections 22-10A-27 and -28 encompass the scope of the right to, and
15 procedures for, discharge hearings and their appeals under the School Personnel Act.
16 Section 22-10A-28 generally governs appeals from discharge hearings provided in
17 Section 22-10A-27. Construing these statutes in pari materia, we have already noted
18 that Sections 22-10A-27 and -28 govern both pre-and post termination procedures for
19 the discharge of school employees. West v. San Jon Bd. of Educ., 2003-NMCA-130,
20 ¶ 11, 134 N.M. 498, 79 P.3d 842. They embody the due process rights of school
5
1 employees who have a protected property right in receiving notice and a hearing prior
2 to their termination. Id.; Bd. of Educ. v. Harrell, 1994-NMSC-096, ¶ 39, 118 N.M.
3 470, 882 P.2d 511. The requirement of a pre-discharge hearing contained in Section
4 22-10A-27 is intended for the protection of the school employee’s rights. Bd. of Educ.
5 v. Singleton, 1985-NMCA-112, ¶ 17, 103 N.M. 722, 712 P.2d 1384. The hearing is
6 mandatory once requested. See id. ¶ 18. SFPS does not disagree. After the school
7 employee exercises his or her right to a pre-discharge hearing under Section 22-10A-
8 27(B), Subsection (C) requires the school board to notify the employee of a hearing
9 to be held between twenty and forty days after the notice of election, with not less
10 than ten days notice provided prior to the hearing. The time specified for conducting
11 a hearing is also mandatory, Bd. of Educ., 1985-NMCA-112, ¶ 20, to the extent that
12 failure to hold a timely hearing constitutes reversible error. Id. ¶ 19. As the district
13 court properly found, nothing in Section 27 to 22-10A-27 indicates discretion in
14 granting or scheduling a hearing following the employee’s late submission of an
15 election.
16 {8} Section 22-10A-28(L)—the harmless error provision—provides that “[u]nless
17 a party can demonstrate prejudice arising from a departure from the procedures
18 established in this section and in Section 22-10-17 NMSA 1978 . . ., such departure
19 shall be presumed to be harmless[.]” The explicit application of harmless error to
20 Section 22-10A-27’s provision for requesting a discharge hearing unambiguously
6
1 expresses the Legislature’s intent that failure to comply with the five-day time limit
2 is deemed harmless error, absent a showing of prejudice. State ex rel. Helman v.
3 Gallegos, 1994-NMSC-023, ¶ 32, 117 N.M. 346, 871 P.2d 1352 (“[T]he [L]egislature
4 is presumed not to have used any surplus words in a statute; each word is to be given
5 meaning.”). Respondents argue that the harmless error presumption does not apply
6 to this case because the five-day time period enumerated in Section 22-10A-27(B) is
7 mandatory, and the right to a hearing was not triggered in this case. Respondents
8 further claim that the plain text of the statute indicates that the harmless error
9 presumption only applies to appeals by a certified school employee. Specifically,
10 SFPS argues that the title of Section 22-10A-28 indicates that the presumption applies
11 only to appeals from and arbitration of hearing decisions.
12 {9} We disagree because Section 22-10A-28(L) regards any departure from
13 procedure that does not prejudice a party as harmless; Respondents must demonstrate
14 prejudice before Mirabal’s two-day delay in electing to request a hearing on his
15 dismissal can be considered as a bar to his entitlement to a hearing. Stated above, we
16 take this to be a legislative directive defining harmless error as any departure from
17 procedures that does not prejudice a party. Aguilera v. Bd. of Educ.,
18 2005-NMCA-069, ¶ 10, 137 N.M. 642, 114 P.3d 322 (requiring courts to accept the
19 Legislature’s definitions of terms ), aff’d on other grounds by 2006-NMSC-015, 139
20 N.M. 330, 132 P.3d 587). Thus, it applies as much to an employee’s tardy election to
7
1 request a discharge hearing under Section 22-10A-27 as to the procedures for appeal
2 of its result as provided otherwise by Section 22-10A-28.
3 {10} Respondents’ reading of the harmless error provision disregards its specific
4 inclusion of Section 22-10A-27(B). SFPS’s suggestion that the title of Section 22-
5 10A-28(L), rather than the language, governs the statute’s applicability does not
6 comport with the plain meaning rule, by which we are guided. We do not read the
7 harmless error provision separately from the rest of the statute, as Respondents invite
8 us to do. Key, 1996-NMSC-038, ¶ 14. While Section 22-10A-27(B) read alone, does
9 seem to indicate that the five-day time period is mandatory, reading it in conjunction
10 with Section 22-10A-28(L) paints a different picture; noncompliance results in failure
11 only when the other side is prejudiced by the delay. Respondents make an argument
12 on this point which, as we understand it, asserts that allowing Mirabal’s untimely
13 hearing request renders Section 22-10A-27(B)’s five-day time period superfluous. In
14 re Rehabilitation of W. Investors Life Ins. Co., 1983-NMSC-082, ¶ 12, 100 N.M. 370,
15 671 P.2d 31 (“Statutes must be construed so that no part of the statute is rendered
16 surplusage or superfluous.”). Our interpretation of the statute—imposing a harmless
17 error presumption on the five-day time limit—does not render that five-day limiting
18 language superfluous. Under our interpretation, Section 22-10A-27(B) does not
19 remove an employee’s right to a hearing; instead, it adapts the deadline to permit
20 untimely requests, so long as any delay will not prejudice a party’s interests.
8
1 {11} The clear language of the statute applies the harmless error presumption to the
2 procedures contained in Section 22-10A-27. We therefore conclude that the harmless
3 error presumption applies to Mirabal’s two-day departure from Section 22-10A-
4 27(B)’s procedures. We now determine whether Respondents made a sufficient
5 demonstration of prejudice to overcome that presumption.
6 B. Respondents Did Not Demonstrate Prejudice
7 {12} Section 22-10A-27(B) gives a school employee, upon hearing of the
8 superintendent’s intent to recommend discharge, the discretion to elect to request a
9 hearing. The employee’s election to exercise the right to a hearing may be given to
10 the school authorities within five working days of the discharge notice. The school
11 board cannot, by statute, convene a hearing less than twenty or more than forty days
12 after the hearing request. Notice of the hearing must be given at least ten days prior
13 to the hearing. In effect, Section 22-10A-27(C) provides for up to ten days of dead
14 time between the employee’s notice of election and the board’s notice of hearing.
15 Two days’ delay in requesting a hearing that can take place within a forty-day
16 window is not inherently prejudicial, and Respondents do not argue that it is.
17 {13} Respondents assert, however, that Mirabal’s failure to timely request a hearing
18 was prejudicial in three ways: “(1) in its interest in efficient administration and
19 reliance upon statutes as written; (2) monetarily, in that under the Act, an employee’s
9
1 right to pay and benefits ends only when termination is effective; and (3) paramount
2 public policy prejudice, in that the trial court’s interpretation would create ambiguity
3 for [SFPS] in discharge proceedings.” We reject the first assertion of prejudice.
4 Respondents provide us with no examples of how its efficient administration was
5 prejudiced by a two-day delay and gives no specific examples by which the untimely
6 request adversely affected its efficiency. The untimely request itself could not
7 adversely affect Respondents’ reliance upon the statute—only the court’s decision to
8 allow the untimely request could throw that reliance into question. Thus, we conclude
9 that Respondents have failed to demonstrate prejudice to its efficient administration
10 and reliance upon statutes.
11 {14} Respondents’ assertion that they suffered monetary prejudice as a result of the
12 extra two days of pay given to Mirabal is similarly unpersuasive. Respondents
13 asserted below that “it is not within the province of [the district] court” to allow two
14 days’ pay to be given to employees who have no statutory right to it. However,
15 Respondents present no evidence that Mirabal received pay and benefits for the two
16 extra days between the March 5 deadline and the March 7 request. To the contrary,
17 according to the facts in the record, Respondents notified Mirabal of his discharge
18 and presumably, Mirabal would not have received pay and benefits following his
19 effective discharge. Only the enforcement of the writ allowed Mirabal to collect
20 administrative leave starting March 8, 2013. The two-day delay would have no
10
1 monetary significance to SFPS; they asserted no other pecuniary loss. We conclude
2 that, regarding Respondents’ assertion of monetary loss, there has been no
3 demonstration of prejudice.
4 {15} Finally, we conclude that Respondents have also not proven prejudice through
5 their assertion that “paramount public policy” was prejudiced by the district court’s
6 interpretation of the statute. Respondents’ assertion of prejudice here is misdirected;
7 instead of showing prejudice arising from Mirabal’s untimely request, it asserts
8 prejudice arising from the district court’s issuance of the writ. General assertions of
9 prejudice are insufficient to demonstrate prejudice, see, e.g., In re Castellano, 1995-
10 NMSC-007, ¶ 15, 119 N.M. 140, 889 P.2d 175 (holding that an assertion of prejudice
11 is not a showing of prejudice), and Respondents have not demonstrated, with any
12 specificity, how public policy was prejudiced by Mirabal’s actions.
13 {16} In total, Respondents’ assertions of prejudice deal not with how Mirabal’s
14 untimely request was prejudicial, but rather with how the writ is prejudicial. This is
15 not the showing that Respondents are required to make under the statute: “a party can
16 demonstrate prejudice arising from a departure from the procedures established in
17 . . . Section [22-10A-27]” to overcome the presumption of harmless error. Section 22-
18 10A-28(L) (emphasis added). We conclude that SFPS failed to demonstrate prejudice
19 from Mirabal’s untimely hearing request. We therefore hold that, due to Respondents’
11
1 failure to overcome the presumption, Mirabal’s departure from the five-day time
2 requirement constitutes harmless error. As such, SFPS should have held a hearing.
3 C. The Writ of Mandamus was Proper
4 {17} We next address SFPS’s assertions that mandamus is improper because the
5 statute does not impose a clear legal duty to perform an act. A writ of mandamus may
6 be issued “only to force a clear legal right against one having a clear legal duty to
7 perform an act and where there is no other plain, speedy and adequate remedy in the
8 ordinary course of law.” Brantley Farms v. Carlsbad Irrigation Dist., 1998-NMCA-
9 23, ¶ 16, 124 N.M. 698, 954 P.2d 763; NMSA 1978, § 44-2-5 (1884); NMSA 1978,
10 § 44-2-4 (1884) (stating mandamus “may be issued . . . to compel the performance of
11 an act which the law specially enjoins as a duty.”). A writ of mandamus applies to
12 ministerial duties—those arising when the law dictates that “a public official must act
13 when a given state of facts exist”—and is inappropriate “when the matter has been
14 entrusted to the judgment or discretion of the public officer.” Mimbres Valley
15 Irrigation Co. v. Salopek, 2006-NMCA-093, ¶ 11, 140 N.M. 168, 140 P.3d 1117.
16 Respondents do not disagree that a pre-discharge hearing is generally mandatory
17 when requested. Discretion, in the context of ministerial duties, exists when an act
18 “may be performed in one of two or more ways, either of which would be lawful, and
19 where it is left to the will or judgment of the performer to determine in which way it
12
1 should be performed[.]” State ex rel. Four Corners Exploration Co. v. Walker, 1956-
2 NMSC-010, ¶ 8, 60 N.M. 459, 292 P.2d 329 (noting that “when a positive duty is
3 enjoined and there is but one way in which it can be performed lawfully, then there
4 is no discretion.” (Emphasis omitted.)).
5 {18} There is no dispute that SFPS would have had a mandatory, ministerial duty
6 to hold a hearing had Mirabal initially complied with the five-day time period set
7 forth in Section 22-10A-27(B). Thus, we must determine whether the untimely nature
8 of the request made SFPS’s duty to hold a hearing discretionary. The district court
9 concluded that the duty was not discretionary, and we agree.
10 1. SFPS’s Duty to Hold a Hearing Was Not Discretionary
11 {19} SFPS finds significance in the statute’s language requiring a party to
12 demonstrate prejudice: “the very nature of that language shows discretion
13 somewhere.” While we agree that the language indicates the existence of a reviewing
14 body that is assigned the task of deciding whether prejudice existed, we do not agree
15 that such decision rises to the level of discretion in this case.
16 a. Discharge Hearings Under Section 22-10A-27(B) Are Mandatory Unless
17 Prejudicial
18 {20} A discharge hearing, once requested, is mandatory, regardless of when it is
19 requested, “[u]nless a party can demonstrate prejudice[.]” Section 22-10A-28(L)
20 (emphasis added). Mirabal exercised his right to have a hearing by giving written
13
1 notice of his desire to have a hearing. That triggered SFPS’s mandatory duty to hold
2 one. We note that our holding here does not require a party to have a hearing; if no
3 request is made, the local school board is under no duty to hold a hearing. We next
4 look to ascertain who in this case is the “party” saddled with the burden of proving
5 prejudice.
6 {21} In this case, it was the Superintendent’s burden to prove prejudice resulted
7 from Mirabal’s two-day delay. The Superintendent is listed as a party in the statute.
8 Section 22-10A-27(D), (G). The “local school board or governing authority,” Section
9 22-10A-27(C), which in this case is SFPS, is not listed as a “party” under the statute
10 governing discharge hearings. Instead, SFPS issues subpoenas, permits the parties to
11 call witnesses, and renders a written decision. Sections 22-10A-27(F), (H), (J). Under
12 the clear language of the statute, then, it is the Superintendent, not SFPS, that must
13 demonstrate prejudice arising from the two-day delay to overcome the harmless error
14 presumption.
15 b. No Prejudice Exists—Obligation to Hold Hearing Was Not Discretionary
16 {22} By Respondents’ interpretation of Section 22-10A-28(L), the decision of
17 whether a party has adequately demonstrated prejudice is a discretionary decision.
18 Under the facts of this case, we need not address whether the Legislature’s use of the
19 word “demonstrate” indicates discretion. Any discretion that could have existed was
14
1 removed by the absence of plausible prejudice arguments. Under a plain reading of
2 the statute, no discretion exists until there is a demonstration of prejudice. As
3 discussed above, the two-day departure from Section 22-10A-27(B)’s procedures was
4 not prejudicial. Thus, SFPS never had discretion, and it continues to have a
5 mandatory duty to hold a hearing.
6 2. No Other Adequate, Speedy Remedy
7 {23} By statute, a writ of mandamus “shall not issue in any case where there is a
8 plain, speedy and adequate remedy in the ordinary course of law.” Section 44-2-5.
9 The School Personnel Act does allow for a discharged teacher to appeal a local school
10 board’s decision, but only after a discharge hearing is held. Section 22-10A-28(A).
11 There is no remedy under the School Personnel Act for a discharged employee who
12 has had no hearing. We have previously held, and our Supreme Court has confirmed,
13 that mandamus is properly available where there has been no hearing before the local
14 school board. See Quintana v. State Bd. of Educ., 1970-NMCA-074, ¶¶ 8-9, 81 N.M.
15 671, 472 P.2d 385; see also Brown v. Romero, 1967-NMSC-057, ¶ 8, 77 N.M. 547,
16 425 P.2d 310 (concluding that a teacher’s breach of contract claim, arising out of
17 employment contract and challenging denial of hearing, was premature where she had
18 not brought a mandamus action to “pursue and exhaust” her remedies). Respondents’
19 briefs do not present any suggestions as to what alternative, speedy remedies are
15
1 available to Petitioner, and instead seek to foreclose the only option available for
2 review; absent this information, we do not review the argument. See Headley v.
3 Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We
4 will not review unclear arguments, or guess at what [a party’s] arguments might be.”);
5 see also Santa Fe Exploration Co. v. Oil Conservation Comm’n, 1992-NMSC-044,
6 ¶ 11, 114 N.M. 103, 835 P.2d 819 (stating that we have no duty to entertain
7 arguments when no authority is presented in support of an argument). We conclude
8 that Petitioners had no other adequate, speedy remedy at law; mandamus was properly
9 granted.
10 CONCLUSION
11 {24} We affirm the district court’s order issuing a permanent writ of mandamus. For
12 the foregoing reasons, we also affirm the district court’s denial of Respondents’
13 motion to dismiss and motion to quash the writ.
14 {25} IT IS SO ORDERED.
15 ____________________________________
16 RODERICK T. KENNEDY, Judge
16
1 WE CONCUR:
2 ______________________________
3 MICHAEL E. VIGIL, Chief Judge
4 ______________________________
5 CYNTHIA A. FRY, Judge
17