dissenting.
I dissent from what, in my judgment, is an attempt by this Court to change the Constitution, Article 6, Section 27 by judicial edict or fiat. The Legislature cannot change the Constitution by legislative enactments and neither should we, by interpretation of legislative intent or by our own fiat, be allowed to do so. I agree totally with the scholarly analysis of the law as penned by Judge William Bivins of the Court of Appeals in his Opinion, and I hereby adopt his Opinion as my dissent and hereby instruct that it be printed and published as my dissent in its entirety.*
APPENDIX
OPINION
BIVINS, Judge.In each of these seven cases the defendants either entered a plea of guilty or a plea of no contest in metropolitan court to misdemeanor charges. All appealed to the district court. In each case the district court dismissed the appeal. Defendants now appeal to this court from that dismissal. Because the cases of defendants Romero, Polys, Storey, Moreno and Fichera all involve common issues we consolidated those cases and assigned them to the legal calendar. State v. Ball involves the same issues and we now consolidate that case with the others; however, State v. Ball requires additional discussion because of the manner in which this defendant entered his guilty plea.
The cases before us present the following two issues:
(1) Whether a party must be an “aggrieved” person in order to appeal from final judgments or decisions in criminal cases entered in metropolitan court to district court; and if the answer to that question is in the affirmative, then,
(2) Whether a defendant who pleads no contest or enters a guilty plea to criminal charges in metropolitan court qualifies as an aggrieved person entitled to appeal the judgment and sentence to district court.
Since we hold that a party does not have to be an aggrieved person in order to appeal, we do not reach the second issue. State v. Ball presents the additional issue as to whether that defendant’s plea and disposition agreement bars his right of appeal. Under the circumstances of that case, we hold it does not. Thus, we reverse in all the cases and remand for trial de novo in the district court.
In each case the district court dismissed the defendant’s appeal from metropolitan court on the ground that the defendant had to be, but was not, an aggrieved person. The question put squarely before us in these appeals is whether a defendant has an unqualified right of appeal to district court for a trial de novo from a final judgment or decision in criminal cases entered in metropolitan court, or whether he must be an aggrieved person in order to appeal.
1. Do the defendants have to be aggrieved persons in order to appeal?
We begin our discussion with the New Mexico Constitution. N.M. Const, art. VI, Section 27 provides:
Appeals shall be allowed in all cases from the final judgments and decisions of the probate courts and other inferior courts to the district courts, and in all such appeals, trial shall be had de novo unless otherwise provided by law. (As amended November 8, 1966.)
In City of Albuquerque v. Sanchez, 81 N.M. 272, 466 P.2d 118 (Ct.App.1970) this court had occasion to decide whether a defendant who pled guilty to a misdemean- or in municipal court had a right of appeal to district court. Based on NMSA 1953, Section 21-10-1 (Supp.1969) (now NMSA 1978, Section 39-3-1), which states, “All appeals from inferior tribunals to the district courts shall be tried anew in said courts on their merits, as if no trial had been had below, except as otherwise provided by law,” we held defendant had a right of appeal. We said, “The terms of that section are clear and without limitation.” 81 N.M. at 273.
While resting its decision in Sanchez on Section 21-10-1, this court in dictum commented on article VI, Section 27, which we note carries the same meaning as the statute. The city in Sanchez argued that to allow an appeal after a guilty plea would impede or delay the orderly and speedy administration of justice. In response, we said, “With this we do not agree, but assuming it is correct, then this is a situation which calls for legislative therapy and not judicial surgery.” Id. at 273, 466 P.2d 118. After citing article VI, Section 27, we said that the framers of the Constitution “imposed no condition except a proviso that the Legislature could, by law, change the right granted.” Id. at 273, 466 P.2d 118 (emphasis added). We referred to the phrase “unless otherwise provided by law” which appears at the end of article VI, Section 27. Finding no change in Section 21-10-1 or elsewhere, we upheld defendant’s right of appeal. This court did, however, find in a later case that “legislative therapy” had taken place following Sanchez.
In State v. Bazan, 97 N.M. 531, 641 P.2d 1078 (Ct.App.1982), this court held that a defendant who pleads guilty in metropolitan court pursuant to a written plea and disposition agreement is not entitled to a trial de novo in district court. This court based its decision on alternate grounds that (1) the defendant had waived his right to appeal for a trial de novo by the terms of the plea and disposition agreement, which we will consider later in connection with defendant Ball's case; and (2) defendant was not an aggrieved party, the focus of our present discussion. Thus, in Bazan we expressly recognized that a defendant charged with a crime in metropolitan court had to be aggrieved in order to appeal.
The Bazan court in making its ruling relied on NMSA 1978, Section 34-8A-6(C) (Repl.Pamp.1981) which provides:
Any person aggrieved by any judgment rendered by the metropolitan court may appeal to the district court of the county in which such judgment has been rendered within fifteen days after entry of the judgment. All criminal trials upon appeal from the metropolitan court shall be de novo unless otherwise specified by supreme court rule. (Emphasis added.)
We held that the “legislative therapy” prescribed in Sanchez had taken place by the enactment in 1979, and amendment in 1980, of Section 34-8A-6(C). We also noted that by adopting in 1980, NMSA 1978, Metro.Rule 71(a) and (i) (Cum.Supp.1984), the supreme court likewise requires that a party be an aggrieved person in order to appeal from metropolitan court to district court.1
Because article VI, Section 27 allows an appeal “in all cases” while Section 34-8A-6(C) and Metro.Rule 71 recognize a right of appeal only by an aggrieved person, we are confronted with an unmistakable conflict, unless the constitutional provision can be read to permit the Legislature to change the right of appeal.
By limiting the right to appeal to aggrieved persons, Section 34-8A-6(C) implicitly bars an appeal by anyone not aggrieved by the judgment of the metropolitan court. The question then arises whether this statute violates the general rule that the Legislature, by statute, may not diminish a right expressly provided by the Constitution. See State v. Santillanes, 96 N.M. 482, 632 P.2d 359 (Ct.App.1980), rev’d on other grounds, 96 N.M. 477, 632 P.2d 354 (1981). The answer to this question turns on whether article VI, Section 27 authorized the Legislature to change the right of appeal, as Sanchez suggests, as opposed to the manner of appeal, as defendants here argue.
On closer examination, article VI, Section 27 reads, “Appeals shall be allowed in all cases from the final judgments and decisions * * * and in all such appeals, trial shall be had de novo unless otherwise provided by law.” (Emphasis added.)
There is no comma between “de novo” and “unless otherwise provided by law.” “[A] restrictive clause only applies to the words or phrase immediately preceding it, and not to others more remote.” State v. Stevens, 100 N.M. 577, 579, 673 P.2d 1310, 1312 (1983); In re Goldsworthy’s Estate, 45 N.M. 406, 115 P.2d 627 (1941). A comma must not be placed between the restrictive clause and that which it restricts. Id.; see also Hughes v. Samedan Oil Corp., 166 F.2d 871 (10th Cir.1948). Restrictive clauses follow and limit the words they modify and are not set off by commas. State v. Stevens. “[Rjelative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote.” In re Goldsworthy’s Estate, 45 N.M. at 412, 115 P.2d 627 (quoting 59 C.J., Statutes, § 583).
Therefore, in article VI, Section 27, “unless otherwise provided by law” must be construed to modify only the form of the appeal, i.e., by trial de novo, and not other phrases more remote. Thus, the constitutional provision allows the Legislature to change the form of an appeal from metropolitan court to district court to other than by trial de novo. But the Legislature may not, by statute, change or limit the first part of the section which allows appeal in all cases from final judgments and decisions of the metropolitan court.
The state contends that Bazan considered the interplay between the constitutional and statutory provisions. Based on the language in Sanchez that the Legislature could change the right granted, Bazan assumed, but did not actually consider, the accuracy of that statement. We do so here.
The state further argues that even if “unless otherwise provided by law” applies only to the form of the appeal, Section 34-8A-6(C) and Metro.Rule 71(a) provide for a trial de novo only for aggrieved persons. Thus, the state reasons that any unaggrieved person must be relegated to an appellate review, rather than a trial anew, and because defendants here proffer no error by the metropolitan court, there is nothing to review. We reject this circuitous argument. Because the metropolitan court is not a court of record with respect to criminal actions, see Section 34-8A-6(B), to limit an unaggrieved person to an appellate review would in effect deprive the defendant of his right of appeal.. A more compelling reason for rejecting this argument may be found in the statute and supreme court rule. To follow the state’s reasoning, we would have to interpret both Section 34-8A-6(C) and Metro.Rule 71(a) as omitting unaggrieved persons only from an appeal de novo. We do not interpret either in this manner. The obvious sense of the language is to provide no appeal at all for anyone not aggrieved. That was the basis for the state’s motion to dismiss these appeals.
Finally, the state also contends that to allow defendants to bypass metropolitan court would frustrate the overall statutory scheme which grants jurisdiction over misdemeanors to the metropolitan court. The state argues that the defendant should not have a choice of forums between metropolitan court and the district court, again claiming to allow such would effectively negate the jurisdiction of the metropolitan court over misdemeanor cases.
We agree that article VI, Section 27 does just that, but only because the constitutional provision provides for trial de novo. The “unless otherwise provided by law” phrase would permit the Legislature to provide for appellate review by the district court rather than trial de novo. We note that the Legislature has done this with respect to civil actions by making the metropolitan court a court of record as to those actions and providing for appellate review by the district court. See Sections 34-8A-6(B) and (D); NMSA 1978, Metro.R. 76 (Repl.Pamp. 1981); Johnson v. Southwestern Catering Corp., 99 N.M. 564, 661 P.2d 56 (Ct.App. 1983).
While there are no appellate court cases in New Mexico dealing with the precise issue presented by these appeals, the result we reach finds support in two recent cases. In State v. Giraudo, 99 N.M. 634, 661 P.2d 1333 (Ct.App.1983), this court had occasion to determine whether the state had a right of appeal under article VI, Section 27, notwithstanding limiting provisions of Metro. Rule 71(b). In that case the district court ruled that the state had no appeal from the metropolitan court’s dismissal for failure to timely prosecute. Metro.Rule 71(b) limits the prosecution’s right to appeal from a judgment dismissing the complaint “on the basis that an ordinance, statute or section thereof is invalid or unconstitutional, or that the complaint or a part thereof is not otherwise legally sufficient.” Id. On the basis that article VI, Section 27 controlled over the rule, we reversed, holding:
However, in light of N.M.R. Metro.P. 1(b), N.M.S.A.1978 (1981 Repl.Pamph.) the constitutional provision, rather than the narrower Rule 71(b), supra, controls the State’s right to appeal. Metro.Rule 1(b) provides:
These [Metropolitan Court] rules shall be liberally construed to secure the just, speedy and inexpensive determination of every metropolitan court action. They shall not be construed to extend or limit the jurisdiction of any court, or to abridge, enlarge or modify the substantive rights of any litigant. (Emphasis added.) ing the substantive right of the State to appeal. Consistent with Metro.Rule 1(b), supra, we apply the constitutional provision, which requires only a final judgment. Since the order of dismissal is a final judgment the State may appeal it to the district court.
The right to appeal is a substantive right. State v. Arnold, 51 N.M. 311, 183 P.2d 845 (1947). Were we to apply Metro.Rule 71(b), instead of Article VI, § 27 of our constitution, we would be abridg-
99 N.M. at 636, 637, 661 P.2d 1333.
A year later the supreme court in Smith v. Love, 101 N.M. 355, 683 P.2d 37 (1984) held the restrictive language of Metro.Rule 71(b) unconstitutional as abridging or diminishing the right of appeal expressly provided by the constitution, article VI, Section 27.
We are not unaware of the impact our decision could have on the caseload of the district courts. However, if the Legislature wishes to limit the right of appeal from final judgments and decisions of the metropolitan court to the district court to persons aggrieved thereby, it must do so through a constitutional amendment. Cf. N.M. Constitution, article VI, § 2 (providing that “an aggrieved party” shall have an absolute right to one appeal from district court). Absent qualifying language we hold that Section 34-8A-6(C) and Metro. Rule 71(a) impermissibly abridge or diminish the unqualified right of appeal guaranteed by article VI, Section 27. To the extent Sanchez may be read as permitting a change in the right of appeal provided by article VI, Section 27, it is overruled. Likewise, to the extent Bazan requires that a party be an aggrieved person in order to appeal, it too is overruled.
2. Does the separate issue in State v. Ball require a different result?
Defendant Ball entered into an oral plea and disposition agreement whereby he agreed to plead guilty to driving with a suspended or revoked license. The prosecutor agreed to recommend that his sentence not include incarceration. These were the only terms of the agreement. The metropolitan court refused to accept the recommendation and sentenced Ball to seven days in jail and imposed a fine of fifteen dollars. The district court dismissed Ball’s appeal. Even though we hold that Ball did not have to be an aggrieved person in order to appeal, that holding does not answer the question of what effect, if any, the plea agreement had in Ball’s right to appeal.
In Bazan this court held that defendant waived his right to an appeal for a trial de novo by entering into a plea and disposition agreement. Bazan is distinguishable. First, in Bazan the metropolitan court approved the agreement. In Ball’s case the court rejected the agreement. See Eller v. State, 92 N.M. 52, 582 P.2d 824 (1978). Ball could not be bound by an agreement rejected by the court. Second, in Bazan the defendant expressly waived his right to appeal in the written plea and disposition agreement he made with the prosecution. No such waiver is present here. Therefore, Ball may appeal for a trial de novo.
3. Conclusion
We reverse the orders in all the cases denying defendants the right of an appeal de novo in district court, and remand for further proceedings.
IT IS SO ORDERED.
NEAL and ALARID, JJ., concur.Ed. Note: see appendix.
. MetroJRule 71, as cited in Bazan, provides in pertinent part:
(a) Right of appeal by defendant. A defendant who is aggrieved by any judgment rendered by the metropolitan court may appeal to the district court of the county within which the metropolitan court is located within fifteen days after entry of the judgment or final order.
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(i) Trial de novo. All trials upon appeals from the metropolitan court to the district court shall be de novo and shall be governed by the Rules of Criminal Procedure for the District Courts. (Emphasis added.)