(specially concurring).
Because of the manner in which many of the protest hearings have been conducted, I believe it is advisable to reiterate some of the well-established principles and rules governing administrative hearings for the future guidance of the various County Protest Boards.
Protest Boards are quasi-judicial bodies and even though the technical rules of evidence and the Rules of Civil Procedure do not apply at protest hearings (§ 72-31-27(A), N.M.S.A.1953 (Repl. Vol. 10, pt. 2, Supp.1975)), there are various legal principles and rules which are binding upon them. They are bound, as are all courts, by the provisions of constitutional due process and by the fundamental rules of fairness. State v. Mountain States Tel. & Tel. Co., 54 N.M. 315, 224 P.2d 155 (1950); Transcontinental Bus System v. State Corp. Commission, 56 N.M. 158, 241 P.2d 829 (1952); Baca v. Chaffin, 57 N.M. 17, 253 P.2d 309 (1953); Ferguson-Steere Motor Co. v. State Corp. Com’n, 63 N.M. 137, 314 P.2d 894 (1957); McWood Corporation v. State Corporation Commission, 78 N.M. 319, 431 P.2d 52 (1967). Procedural due process requires that a protesting taxpayer be given adequate notice of the time and place of the hearing (Groendyke Transp., Inc. v. New Mexico State Corp. Com’n, 79 N.M. 60, 439 P.2d 709 (1968)); that he be given the opportunity to be heard and to present evidence in his behalf; and that he be allowed a reasonable right of cross-examination and the right to be represented by counsel should he desire. Due process requires that the Board base its decision on evidence produced at the hearing by witnesses personally present or by authenticated documents, maps, etc., and that the evidence be incorporated in the record. Transcontinental Bus System v. State Corp. Commission, supra. That is, the Board may not base its order on facts outside the record about which the taxpayer had no knowledge and no opportunity to be heard in regard thereto. Woody v. R.R. Co., 17 N.M. 686, 132 P. 250 (1913). Its orders must be supported by substantial evidence. Baca v. Chaffin, supra; Ferguson-Steere Motor Co. v. State Corp. Com’n, supra; and McWood Corporation v. State Corporation Commission, supra. Unsubstantiated hearsay does not constitute substantial evidence. Ferguson-Steere Motor Co. v. State Corp. Com’n, supra; McWood Corporation v. State Corporation Commission, supra.
The essence of a fair hearing is the right to be fully informed of what you are contending against. How else can a taxpayer be expected to protest an assessment intelligently if he doesn’t know what it is based upon? Woody v. R.R. Co., supra. This information should either be sent to the taxpayer or he should be informed where and when it is available for his inspection. A third alternative would be to hold a bifurcated hearing. At the first part the Board would be presented with the evidence of how the assessment was arrived at. At the second part the taxpayer would present his evidence and arguments. A protest hearing should not be viewed as an adversary proceeding with the Board arrayed against the taxpayer, even though the taxpayer has the burden of overcoming the presumption of correctness of the assessment (§ 72-31-6, N.M.S.A.1953 (Repl. Vol. 10, pt. 2, Supp.1975)). The Board should readily make available all relevant information which it possesses about the taxpayer’s property and the assessment.
I recognize that one of the main purposes of administrative law is to provide a more flexible and informal procedure than is possible before courts. However, informality must not be practiced to the point that a hearing becomes a summary proceeding, a mere formality preceding a predetermined result.
The orders of valuation protest boards must give some indication of their reasoning and of the basis upon which they were adopted in order for this court to be able to perform its reviewing function. City of Roswell v. New Mexico Water Quality Control Com’n, 84 N.M. 561, 505 P.2d 1237 (Ct.App.1972).