(specially concurring).
I concur in the result of the majority opinion, but not for the reasons stated. I specially concurred in Fort Sumner Municipal School Board v. Parsons, et al., 82 N. M. 610, 485 P.2d 366 (Ct.App.1971), because the State Board of Education did not comply with the authority and powers granted in § 77-8-17(D), N.M.S.A.1953 (Repl.Vol.il, pt. 1). I specially concur in this opinion because the State Board of Education did comply with its authority and powers.
The State Board found, (1) “That the transcripts do not disclose a substantial departure from the procedures and regulations prescribed by the State Board which is prejudicial to ‘McAlister’ * * (2) “that the transcripts contain evidence substantiating the finding of the Flobbs Municipal School Board that ‘McAlister’ was insubordinate;” and concluded “That good cause exists for the discharge of Elvin McAlister.”
The decision of the State Board was final. Section 77-2-2(T), N.M.S.A.1953 (Repl.Vol. 11, pt. 1). McAlister appealed. The State Board decision complied with its statutory authority and powers in a review proceeding provided by law. This is the reason I concur.
I desire to supplement the concurring opinion in Parsons. There, I stated “The State Board of Education is not an administrative agency of the state because it is created by the constitution, not by the legislature.” No authority was cited.
State ex rel. Sholes v. University of Minnesota, 236 Minn. 452, 54 N.W.2d 122, 126 (1952), said:
“An administrative agency * * * is given life by the legislature. Its powers and duties are prescribed by the legislature. As it is created, so may it be destroyed. Its powers may be curtailed or enlarged by legislative action. The legislature has no such power over the board of regents of our university. Its charter may be amended only by action of the people.” [Emphasis added].
However, see Utton, Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies, 7 Natural Resources Journal 599 (1967). Professor Utton recognizes administrative agencies as being “Constitutional Agencies” and “Legislatively Created Administrative Agencies.” The article does not discuss the relationship between constitutional agencies and “administrative agencies of the state” in Article VI, Section 29 of the Constitution.
The State Board may not be an administrative agency of the state, and we should be concerned with the jurisdiction of the Court of Appeals to review its decisions.
Article VI, Section 29 of the Constitution provides:
“The court of appeals shall have no original jurisdiction. It may be authorized by law to review directly decisions of administrative agencies of the state, and it may be authorized by rules of the Supreme Court to issue all writs necesnary or appropriate in aid of its appellate jurisdiction. In all other cases, it shall exercise appellate jurisdiction as may be provided by law.” [Emphasis added].
In my opinion, “administrative agencies of the state” is limited to legislative created agencies. Otherwise, the constitutional provision would have included “all” administrative ágencies, or constitutional and legislative agencies. Generally, administrative agencies are creatures of the statute. This is a common belief in the legal mind.
The legislature, by § 16-7-8, N.M.S.A. 1953 (Repl.Vol. 4), granted the Court of Appeals jurisdiction to review on appeal civil and criminal actions, workmen’s compensation actions, post conviction remedies, actions for violation of ordinances, decisions of administrative agencies, and finally:
“G. decisions in any other action as may be provided by law.” .[Emphasis added].
The legislature may have intended the words “decisions in any other action” to mean “in all other cases.” But, to me, it sounds like a limitation because the words “all other cases” are broader than “decisions in any other action.”
The word “cases” in the constitutional provision, supra, does not embrace “decisions of administrative agencies,” but the word “case” does include a “decision.” Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo C.A.C.B., 80 N.M. 633, 639, 459 P.2d 159 (Ct.App.1969).
Is a decision of a judicial hearing before the State Board “any other action” which gives the Court of Appeals jurisdiction?
The words “any other action” are very broad and without limitation and in the statute, it follows actions, proceedings and decisions. This could include a judicial hearing before a constitutional body. The legislature did provide procedure for a decision of the State Board. Section 77-8-1 to § 77-8-19, N.M.S.A.1953 (Repl.Vol. 11, pt. 1). The legislature provided another “action,” so this is a “decision” in another action provided by law.
This jurisdictional analysis was not heretofore discussed by New Mexico courts of review. But this court has in the past accepted jurisdiction on appeal from decisions of the State Board. I concur at this point, because the jurisdictional problem has not been a matter of interest in the struggle between the teacher and the legislature.
In Parsons special concurring opinion, I used the term “quasi-judicial” adopted from a Montana decision. Utton, supra, has convinced me the word should be removed and “judicial” substituted therefor as the term “judicial power” was used in McCormick v. Board of Education, 58 N.M. 648, 660, 274 P.2d 299 (1954). I disagree with McCormick. It states that under the constitution, the decisions of the State Board are final and conclusive and not subject to review, and, in the next sentence, it states that the State Board decisions are subject to review. I interpret Article XII, Section 6(A) of the Constitution, as amended November 4, 1958, to declare that the State Board shall act “pursuant to authority and powers provided by law.” Under the previous constitutional provision in existence during McCormick, the State Board had control of public schools “under such regulations as may be provided by law.” There is a substantial difference in both constitutional provisions. This difference has not heretofore been discussed or decided by a court of review. It should be done.
It is my opinion, as stated in Parsons, that our only power of review is to determine whether the State Board complied with authority and powers granted it in § 77-8-17 (D), supra. This puts the teacher within the authority and power of the State Board granted by the legislature. Otherwise, what purpose could the people have in creating a State Board of Education as a constitutional body ?
I, accordingly, specially concur.