(specially concurring).
I concur in Judge Wood’s opinion. This special concurrence is written because his opinion does not discuss an additional aspect.
Mrs. Chavez’ reapplication for assistance as a disabled person was formally denied on May 4, 1972, the day the New Mexico Supreme Court denied a petition for a writ of certiorari to review the Court of Appeals decision in the Baca case cited by Judge Wood.
The decision in the Baca case was final when, on June 1, 1972, an administrative hearing was held on Mrs. Chavez’ appeal from the denial of her application for assistance as a needy person. At that hearing, a representative of the Legal Aid Society, on behalf of Mrs. Chavez, brought the Baca decision to the hearing officer’s attention. The reference to the Baca decision appears in the record of the administrative hearing.
According to the letter of the executive director of the department dated June 19, 1972, the “Appeals Review Committee” had studied the transcript of that hearing. In denying Mrs. Chavez’ appeal, the review committee wrote a legal opinion to the effect that the department was not required to provide public assistance under federal law. This opinion ignores state law and state decisions. This opinion is signed by a “welfare administrator,” the “chief attorney” and the “legal assistant to the executive director.” The executive director adopted the recommendations of the appeals review committee.
In this court, Mrs. Chavez’ brief in chief relies on and discusses the Baca decision. The department’s answer brief ignores that decision. The department did not acknowledge the existence of the Baca decision until its attorney was specifically asked about the decision, from the bench, during oral argument.
We are not dealing here with a governmental agency that can plead ignorance of the Baca decision or that was without advice of counsel. The record charges HSS with knowledge of the Baca decision, at least from the time of the administrative hearing. The record shows HSS has proceeded with advice of counsel.
In this state of the record, I would have caused contempt citations to be issued by this court directed to the attorneys and high administrative officials identified of record to require an explanation of why HSS has systematically avoided acknowledging the existence of a decision to which HSS was a party, which decision was final prior to pertinent events in this case. Alternatively, I would have reversed the HSS decision in this case because of violation of Rules of Appellate Procedure. The refractoriness of HSS, disclosed by this record, should not go unacknowledged by this court.