Chavez v. City of Albuquerque

HARTZ, Chief Judge,

specially concurring in part and dissenting in part.

31. I concur in the result except that I would bar Plaintiffs claim that the hearing officer’s appointment violated the Open Meetings Act.

32. I agree with the majority that Plaintiffs breach-of-contraet claim is barred by the proceeding before the City’s personnel board. The legislature has authorized municipalities to enact merit system ordinances establishing grievance proceedings as the exclusive means for a municipal employee to claim that a job termination violated the employee’s contractual rights under the ordinance. See Zamora v. Village of Ruidoso Downs, 120 N.M. 778, 907 P.2d 182 (1995).

33. I also agree that the personnel board does not have jurisdiction to decide the validity of city ordinances. In particular, the board does not have jurisdiction to decide whether the ordinance establishing the City’s drug testing program is invalid on the ground that (1) the ordinance was enacted in violation of the Open Meetings Act or (2) the ordinance violates constitutional restrictions on search and seizure. Our Supreme Court stated in Sandia Savings & Loan Ass’n v. Kleinheim, 74 N.M. 95, 100, 391 P.2d 324, 327-28 (1964):

A fundamental distinction, must be recognized between constitutional applicability of legislation to particular facts and constitutionality of the legislation. When a tribunal passes upon constitutional applicability, it is carrying out the legislative intent, either express or implied or presumed. When a tribunal passes upon constitutionality of the legislation, the question is whether it shall take action which runs counter to the legislative intent. We commit to administrative agencies the power to determine constitutional applicability, but we do not commit to administrative agencies the power to determine constitutionality of legislation. Only the courts have authority to take action which runs counter to the expressed will of the legislative body.

(quoting 3 Kenneth C. Davis, Administrative Law Treatise, § 20 .04 at 74 (1958)). Although Sandia Savings addresses a state agency’s review of the “constitutionality of legislation,” the same considerations apply to a municipal agency’s review of the validity of a municipal ordinance under state statutes. Accordingly, a municipal agency cannot review whether the municipality’s enactments are valid under the law of a higher authority.

34. To be sure, the employee could raise challenges to the validity of an ordinance through appellate review in district court of the personnel board’s action. Indeed, the legislature could mandate that the exclusive avenue for an employee to challenge termination by the City—regardless of the grounds for the challenge — would be by first going through the grievance procedure and then appealing to the district court. See Neff v. State ex rel. Taxation & Revenue Dep’t, 116 N.M. 240, 244, 861 P.2d 281, 285 (Ct.App. 1993) (income tax cannot be challenged in district court action when taxpayer did not appeal decision of administrative agency); id. at 245-46, 861 P.2d at 286-87 (Hartz, J., specially concurring). Such a legislative mandate would at least foreclose independent actions in district court based on state-law grounds. (The extent to which state legislation could affect a federal cause of action, such as one under 42 U.S.C. Section 1983 (1996), is a different question.) But the legislature has issued no such mandate here. On the contrary, the legislature has not even provided for an appeal from the personnel board to district court. (I seriously question whether a city ordinance, as opposed to a statute enacted by the legislature, can confer a right of appeal to state district court, as the City’s Merit System Ordinance purports to do.)

35. In short, (1) the personnel board does not have jurisdiction to decide the validity of the challenged ordinance and (2) the legislature has not enacted a statute requiring that an employee’s challenge to the validity of the ordinance be raised through an appeal from the board to district court. I therefore agree with the majority that Plaintiff can bring an independent action in district court seeking relief on the ground that the drug-testing ordinance was invalid.

36. On the other hand, I disagree with the majority’s conclusion that Plaintiff can bring an independent district court action claiming that the hearing officer who reviewed his grievance was not appointed in compliance with the Open Meetings Act.1 I dissent on two grounds. First, the personnel board had jurisdiction to review the validity of the hearing officer’s appointment. Although Sandia Savings forbids agencies from deciding the constitutionality of legislation, it gives agencies the power to determine the “constitutional applicability of legislation to particular facts.” Sandia Savings, 74 N.M. at 100, 391 P.2d at 328 (internal quotation marks omitted). That is, an agency has the authority to determine whether the constitution has been applied correctly on a particular occasion. By the same token, the board could decide that the hearing officer had been improperly appointed. Such a determination would not require the board to decide whether any statute or ordinance was invalid. I do not read NMSA 1978 Section 10-15-3(0 (1993), which gives the district courts jurisdiction to enforce the Open Meetings Act, as preventing any other tribunal from deciding whether its own proceedings have complied with the Act. Because the personnel board had jurisdiction over this part of Plaintiffs claim, further litigation of the matter is barred by claim preclusion.

37. The second ground for my dissent is that Plaintiffs challenge to the hearing officer’s appointment is an improper collateral attack on the personnel board’s decision that his dismissal was in accordance with his contractual rights under the Merit System Ordinance. The sole purpose of the challenge to the hearing officer’s appointment is to set aside the decision of the personnel board. But the exclusive means for reviewing the personnel board’s action is through petition to the district court for a writ of certiorari (assuming that there is no statutory right of appeal to the district court). See Roberson v. Board of Educ., 78 N.M. 297, 299-300, 430 P.2d 868, 870-71 (1967); Hillhaven Corp. v. Human Servs. Dep’t., 108 N.M. 372, 374, 772 P.2d 902, 904 (Ct.App.1989). Collateral attack on the board’s decision is permissible only if its decision was void—for example, if the board lacked jurisdiction. See AA Oilfield Serv. v. New Mexico State Corp. Comm’n., 118 N.M. 273, 278, 881 P.2d 18, 23 (1994). Such is not the ease here. In my view, appointment of the hearing officer in violation of the Open Meetings Act, although a possible ground for reversal of the board’s decision, would not deprive the board of jurisdiction. See Alvarez v. County of Bernalillo, 115 N.M. 328, 850 P.2d 1031 (Ct.App. 1993). Consequently, Plaintiffs challenge to the appointment can be considered only if this portion of his district court action could be characterized as a timely petition for a writ of certiorari, which is highly doubtful. See Zamora, 120 N.M. at 785-86, 907 P.2d at 189-90 (absent exceptional circumstances, petition for writ of certiorari must be filed within thirty days of administrative decision).

. I believe that this is my sole disagreement with the result reached by the majority. I confess, however, that I am uncertain regarding precisely what claims Plaintiff is pursuing on appeal. The appellate briefs focus on general legal principles rather than discussing the details of the specific claims.