dissenting.
34. The City of Albuquerque (City) had a rule, within its employee grievance procedure, which placed upon a terminated or otherwise disciplined employee the burden of coming forward and demonstrating that the discipline imposed was not based on a justifiable cause. The dispositive question in this case is whether Employee’s right to due process was violated when his employer, the City, applied a rule which placed on Employee, a tenured lieutenant in the City’s fire department (the Department), the burden of proving by a preponderance of the evidence that there was no justifiable cause to terminate his employment.
35. At stake here is a tenured public employee’s constitutionally protected property right in maintaining his employment. See Lovato v. City of Albuquerque, 106 N.M. 287, 289, 742 P.2d 499, 501 (1987). According to case law cited by the majority, a constitutionally protected liberty interest also may be at stake. See Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 773, 777-78 (9th Cir.1982) (citing Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972)). I disagree with the majority’s attempt to confine this case to the “narrower issue” of mitigating circumstances. On the broader issue of the constitutionality of the City’s allocation of proof, I do not agree that this case is governed by a per se rule that the Due Process Clause never applies to the allocation of the burden of persuasion in employment termination proceedings, nor do I agree with the notion that the acceptance of such a rule by federal courts, under different facts, relieves this Court of its duty to independently analyze the protection afforded by our state constitution.
36. I would hold that to place the burden of persuasion on the employee under the circumstances of this case so offends accepted notions of fairness as to violate the constitutional mandate of due process under the New Mexico Constitution. “[BJecause the process, as well as the result, is of high importance, sometimes it is the process, rather than the result, that justifies remand and reconsideration.” High Ridge Hinkle Joint Venture v. City of Albuquerque, 119 N.M. 29, 40, 888 P.2d 475, 486 (Ct.App.1994). For this reason, I would affirm the district court’s June 1993 order remanding the matter to the Personnel Board for a second post-termination hearing.
37. I first turn to a review of the facts of this appeal before discussing how the constitutional due process issue arose, how it was preserved for appeal, and why it merits consideration as this case’s central issue.
Standard of Review
38. The majority has concluded that the “real” issue in this case is whether Employee should bear the burden of proving an affirmative defense or mitigating circumstances that would lessen the severity of the discipline imposed on him. To support this conclusion, the majority relies exclusively on the hearing officer’s report of September 1992, and the principle that appellate courts “will not search the record to find evidence to support an appellant’s claims.” In re Estate of Heeter, 113 N.M. 691, 694, 831 P.2d 990, 993 (Ct.App.1992) (applying this principle in a probate case to resolve a substantial evidence question). Because Employee is the appellee in the case at bar and his appeal presents a legal question of constitutional due process that arises from an administrative context where this Court applies a whole record standard of review, see Gallegos v. New Mexico State Corrections Dep’t, 115 N.M. 797, 800, 858 P.2d 1276, 1279 (Ct.App. 1992), I do not believe such complete deference to the September 1992 hearing officer’s report is warranted. Since this case presents mixed questions of fact and law, this Court should review the matter de novo, considering the whole record. See Fitzhugh v. New Mexico Dep’t of Labor, 122 N.M. 173, 180, 922 P.2d 555, 562 (1996).
39. The majority’s analysis of the “narrower issue” of mitigating circumstances presupposes that either the City already had met its burden of proving just cause for Employee’s dismissal, or that Employee did not object to, or preserve for appeal, the issue of whether there was just cause for his dismissal. An examination of the record with respect to the administrative hearings held below reveals that neither of these presuppositions are supported. This Court’s consideration of the issue of the denial of constitutional due process must necessarily be considered in the context of the entire administrative proceedings below. I do not share the majority’s decision to single-out and examine only one aspect of these proceedings in making a determination of what process is due to Employee.
The “Pre-Termination” Hearing — April 1992
40. The April 1992 pre-termination hearing was Employee’s first opportunity to dispute the charge that he arranged for Dan Shine to receive a set of tires for Shine’s personal vehicle at the City’s expense. At this hearing, Employee disputed both the City’s factual allegations and the reasonableness of the City’s decision to terminate him. Employee did not have a full opportunity to rebut the charges against him at this hearing because the hearing officer denied his request to be represented by counsel, and there was no opportunity at this hearing for Employee to cross-examine adverse witnesses or to challenge evidence such as the invoice which documented the transaction in which the tires were billed to the City.
41. Indeed, the hearing officer who presided at this hearing and who wrote the recommendation that Employee be terminated was himself involved in the transactions on which Employee’s termination was premised. This hearing officer was the same person who made repeated requests that Employee solicit donations to pay a debt that the hearing officer had incurred on his personal credit card as a result of the Department’s 1991 Christmas party. This hearing officer was the same person who met with Shine to pick up the donation that Employee had solicited from Shine’s employer to help pay this debt. Other than Employee, Shine was the only person interviewed in both the pretermination investigation and the July 1992 post-termination hearing who had personal knowledge of whether Shine paid Employee for the tires and what the purpose of this transaction was. Hence, the credibility of Shine’s testimony was essential to sustain the charges that Employee violated the Department’s rules. Shine also was disciplined by his employer as a result of the transaction with the tire store.
42. Based on the “pre-termination hearing,” the hearing officer’s written recommendation, and unsworn statements taken by a Department employee with no training or prior experience in conducting investigations of his co-worker’s misconduct, the Chief of the Department issued a memorandum to Employee terminating his employment on April 29, 1992. Employee initiated his challenge to the Fire Chiefs decision to terminate his employment by writing a letter to the Mayor’s Office on May 11,1992 (the May 1992 letter), in which Employee “categorically denies each and every finding” in the Fire Chiefs April 1992 memorandum. The City’s Chief Administrative Officer (CAO) upheld Employee’s dismissal and forwarded Employee’s May 1992 letter to a different hearing officer employed by the City’s Personnel Board, who then conducted the post-termination hearing in July of 1992.
The “Postr-Termination Hearing” — July 1992
43. According to the City’s grievance resolution procedure, Employee’s May 1992 letter is the document that presents the issues being challenged to the post-termination hearing officer. See Albuquerque, N.M., Rev. Ordinances, ch. 2, art. IX, § 2-9-25(D) (1992). The City’s grievance resolution procedure also specifies that the hearing officer shall set the matter down for a “full hearing on the merits” unless the CAO determines that the matter is not a grievance, in which case the hearing is limited to the issue of grievability. Id. at §§ 2-9-25(D)(2) & (3). There is no question that Employee’s complaint constituted a grievance, and hence the July 1992 post-termination hearing was a full hearing on the merits in which the hearing officer was notified and given the opportunity to rule on all of the issues raised in Employee’s May 1992 letter to the CAO. Employee cited relevant portions of the transcript of the July 1992 hearing in his initial appeal to the district court. I therefore take exception to the majority’s characterization of the July 1992 hearing as only involving two issues.
44. The evidence presented by Employee at the July 1992 post-termination hearing, including his own testimony, was relevant to his denial of the City’s factual allegations as well as the issues of denial of due process at the pre-termination hearing and the reasonableness of the City’s decision to terminate him. In particular, Employee denied that he had the requisite intent to violate the Department’s rules. The evidence regarding Employee’s psychological condition was introduced not only to establish mitigating circumstances but also to support Employee’s theory that billing the tires to the City was a mistake rather than an intentional act and to explain why Employee had difficulty remembering what he did with the invoice that resulted in his termination.
45. Employee also denied that Shine ever paid him for the tires, and this denial contradicts Shine’s testimony that Shine paid Employee $250 for the tires. Establishing that such payment occurred is essential to sustaining the charge that Employee accepted a reward from a contractor and attempted to realize personal gain from public employment. However, Shine was initially fired by his employer because of this transaction and then reinstated after he gave his statement to the Department’s investigator and that investigator intervened on his behalf. For this reason, the hearing officer in the April 1994 rehearing on remand found that “Shine did not credibly testify concerning his allegations that he gave [Employee] money which were in part returned by [Employee]” and concluded that the charges involving the payment from Shine to Employee were “not sustained” because “Shine’s statements are not credible especially in light of his own vested interest in getting his own job back which apparently he did.” Because of his involvement in soliciting and receiving the donation from Shine’s employer, the hearing officer at the April 1994 rehearing also “ha[d] a question as to whether [the pre-termination hearing officer] maintained an open mind throughout the pre-determination hearing.” This factual dispute over whether Shine paid Employee for the tires underscores the extent to which the outcome of this ease depends on the assessment of witnesses’ credibility, the neutrality of the factfinder charged with making this assessment, and ultimately, who bears the burden of proof when the only evidence concerning such a key factual issue is the conflicting testimony of two witnesses.
46. The transcript of the July 1992 post-termination hearing demonstrates that Employee was instructed to proceed first with his opening statement, his presentation of evidence, and his closing statement. With the exception of one witness for the City who had to testify out of order because of a scheduling conflict, the City did not present any of its witnesses until Employee had rested his case. Employee carried the burden of proof on all issues raised at the post-termination hearing.
Preservation of Error
47.The constitutional issue regarding the burden of proof has been properly preserved. Our Supreme Court, has recognized that the record in administrative cases can be characterized by procedural informality that would not be acceptable in a trial setting where strict procedural rules apply. See Fitzhugh, 122 N.M. at 184, 922 P.2d at 566. Nonetheless, an appellate court will examine the record so as not to allow the informality of the administrative process to defeat a litigant’s right to perfect an appeal. Strict application of the procedural rules regarding preservation of error to a review of informal administrative proceedings is disfavored. See Chicharello v. Employment Sec. Div., 122 N.M. 635, 930 P.2d 170, 172 n. 1 (1996); Dick v. City of Portales, 118 N.M. 541, 543, 883 P.2d 127, 129 (1994). In the present case, where the challenge is to the constitutionality of the very rules of procedure under which the administrative agency is operating, and a hearing officer employed by that agency had no authority to hold these rules unconstitutional, the purpose of the rule requiring preservation is not served by requiring the challenger to have raised the constitutional issue before the hearing officer. See Montez v. J & B Radiator, Inc., 108 N.M. 752, 754, 779 P.2d 129, 131 (Ct.App.1989); Sandia Sav. & Loan Ass’n v. Kleinheim, 74 N.M. 95, 99-100, 391 P.2d 324, 328 (1964) (citing Kenneth C. Davis, Administrative Law Treatise, § 20.04 (1958)). “[AJlthough appeals through administrative channels are preferred and encouraged, procedural due process defenses should not be waived if timely raised in the first judicial tribunal to review the administrative action.” Ashby v. Civil Serv. Comm’n, 241 Neb. 988, 492 N.W.2d 849, 853 (1992).
48.Employee timely raised this constitutional challenge at the first judicial tribunal to review the administrative action, arguing that In re Termination of Boespflug, 114 N.M. 771, 845 P.2d 865 (Ct.App.1992), provided a basis for interpreting the state provision regarding due process differently than the federal provision. See State v. Gomez, 122 N.M. 777, 784, 932 P.2d 1, 8 (1997). That tribunal ruled on the issue. There is no question that the parties to this appeal recognized the controlling issue in the case as whether Employee’s constitutional right to due process was violated by the manner in which the City allocated the burden of proving just cause for Employee’s termination. The City, the Appellant in this ease, did not limit its appeal to the narrower issue of the burden of proving mitigation or affirmative defenses. Rather, the City asserts in its briefs and docketing statement that "[Employee] disputed that his arranging for the Fire Department to pay for tires installed on a private vehicle could constitute justifiable cause for the Fire Department to dismiss him[,]” and therefore the City framed the issue before the Court as: “Whether the City’s Personnel Hearing Officer may require a grievant to proceed first with his evidence, and therefore bear the burden of proof, in a hearing before the Personnel Board.” The broader issue concerning the burden of proving just cause is properly preserved for appeal and its merits should be addressed.
The Meaning of “Just Cause”
49. Under the facts of this case, the majority’s decision to segregate the “narrower” issue of mitigating circumstances or severity of discipline from the broader issue of whether there is just cause for an employee’s dismissal does not accord with this Court’s previous interpretations of the term “just cause.” The majority’s characterization of the allocation of the burden of proof is a significant departure from the traditional rule according to which a public employer must bear the burden of proving at an evidentiary hearing that there is just cause to terminate an employee. I believe the majority’s analogies to the allocation of proof for affirmative defenses or mitigating circumstances in criminal cases or civil forfeiture proceedings are misplaced.
50. This Court’s prior opinions on the issue of defining “just cause” provide a better analogy. In State ex rel. New Mexico Highway Dep’t v. Silva, 98 N.M. 549, 551-52, 650 P.2d 833, 835-36 (Ct.App.1982), this Court rejected an interpretation of the State Personnel Act, NMSA 1978, §§ 10-9-1 to -25 (Repl.Pamp.1995), that defines “just cause” solely in terms of whether there is sufficient evidence to support a finding that the activity or inactivity of an employee constituted misconduct. In rejecting this interpretation, this Court stated that “just cause” is not measured simply by the employee’s conduct, but rather by “agency action which is taken because of the employee’s conduct.” Silva, 98 N.M. at 552, 650 P.2d at 836 (emphasis in original). In Gallegos, 115 N.M. at 802, 858 P.2d at 1281, this Court interpreted Silva to mean that, in order to establish “just cause” for an employee’s dismissal, “the Board is required to determine not only that there was employee misconduct but also that the agency’s discipline was appropriate in light of that misconduct. The first prong focuses on the employee’s action; the second prong ... focuses on the agency’s action.” (Emphasis in original.)
51. The grievance resolution procedures in the City’s Merit System Ordinance at issue in the case at bar parallel the procedures for employee appeals in the State Personnel Act. Compare NMSA 1978, § 10-9-18 with Albuquerque, N.M., Rev. Ordinances, ch. 2, art. IX, §§ 2-9-24 & -25 (1992). Hence, I would interpret the ordinance and the statute in a similar manner and require the public employer to prove both prongs of the “just cause” test articulated in Gallegos.
The Merits of Employee’s Constitutional Due Process Claim
52. A tenured public employee in New Mexico has a constitutionally protected property interest in continued employment. See Lovato, 106 N.M. at 289-90, 742 P.2d at 501-02; Benavidez v. City of Albuquerque, 101 F.3d 620, 626 (10th Cir.1996) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 1494, 84 L.Ed.2d 494 (1985)). Constitutionally protected liberty interests may be at stake as well. See Vanelli, 667 F.2d at 777-78 (citing Roth, 408 U.S. at 573, 92 S.Ct. at 2707); People v. Ramirez, 25 Cal.3d 260, 158 Cal.Rptr. 316, 320, 599 P.2d 622, 627 (1979). The public employer “shares the employee’s interest in avoiding disruption and erroneous decisions .... ” Loudermill, 470 U.S. at 544, 105 S.Ct. at 1494. The question in this case is what process is due before an individual can be deprived of his or her constitutionally protected interests in continued employment.
53.The authorities cited by the majority take inconsistent approaches to determining what process is due under the Fourteenth Amendment. Compare Lavine v. Milne, 424 U.S. 577, 585, 96 S.Ct. 1010, 1016, 47 L.Ed.2d 249 (1976) (suggesting per se rule that burden of proof is never an issue of federal constitutional moment in civil litigation) with Benavidez, 101 F.3d at 626 (applying balancing test derived from Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), to determine what process is due in each case) and Medina v. California, 505 U.S. 437, 446, 112 S.Ct. 2572, 2577, 120 L.Ed.2d 353 (1992) (relying on text and historical tradition to determine what process is due). Because the approaches taken by courts from other jurisdictions have been inconsistent, I believe an independent analysis of what process is due under Article II, Section 18 of the New Mexico Constitution will result in a more principled resolution of the issue than the majority’s “attempt to divine what the [United States] Supreme Court ‘must have meant’ by its various procedural dispositions^]” an attempt that pays “[v]ery little attention ... to deciding whether the specific facts of the [employee’s situation] denied [him] due process of law.” Gray v. Department of Employment Sec., 681 P.2d 807, 825 (Utah 1984) (Durham, J., concurring in part and dissenting in part). I believe that such an independent analysis accords with the method of state constitutional analysis articulated in Gomez, 122 N.M. at 782-783, 932 P.2d at 6-7, as well as the Tenth Circuit’s approach in Benavidez, 101 F.3d at 627, which noted that the plaintiffs in that case might have availed themselves of additional process if they had proceeded in state district court. In conducting an independent analysis under our state constitution, I would seek guidance from the decisions of federal courts and the courts of our sister states while recognizing that New Mexico courts are not bound to follow such decisions, especially when they are inconsistent with one another. See State v. Gutierrez, 116 N.M. 431, 435-36, 863 P.2d 1052, 1056-57 (1993).
54. New Mexico courts have long recognized that “ ‘due process,’ ... is not a technical conception with a fixed content unrelated to time, place and circumstances.’ ” Mathews, 424 U.S. at 334, 96 S.Ct. at 902; see In re Valdez, 88 N.M. 338, 341, 540 P.2d 818, 821 (1975) (“due process is a rather malleable principle which must be molded to the particular situation, considering both the rights of the parties and governmental interests involved”). For this reason, New Mexico courts have applied a balancing test to determine what process is due an individual who is deprived of a constitutionally protected interest. See, e.g., Board of Educ. v. Harrell, 118 N.M. 470, 478, 882 P.2d 511, 519 (1994); State v. Rotherham, 122 N.M. 246, 262, 923 P.2d 1131, 1147 (1996). A critical component of this balancing test is “the risk of an erroneous deprivation of [a constitutionally protected] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards[.]” Rotherham, 122 N.M. at 262, 923 P.2d at 1147 (quoting Mathews, 424 U.S. at 335, 96 S.Ct. at 903).
The Risk of Error
55. Placing the burden of proof on Employee has a significant effect on the risk of error. “Where the burden of proof lies on a given issue is ... rarely without consequence and frequently may be dispositive to the outcome of the litigation or application.” Lavine, 424 U.S. at 585, 96 S.Ct. at 1016; cf. Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 283, 110 S.Ct. 2841, 2854, 111 L.Ed.2d 224 (1990) (reasoning that the “more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision”); Cooper v. Oklahoma, 517 U.S. 348, -, 116 S.Ct. 1373, 1383, 134 L.Ed.2d 498 (1996) (“[a] heightened standard [of proof] does not decrease the risk of error, but simply reallocates that risk between the parties”). Especially where “a post-termination hearing represents the only meaningful opportunity the employee has to challenge the employer’s action, ... requiring a dismissed employee to prove in this context that he was terminated without just cause may increase the risk of an erroneous deprivation.” Benavidez, 101 F.3d at 626. The risk of error is increased by placing the burden of proof on the Employee for several reasons.
56. First, there is a heightened risk of error because this is a case where “issues of witness credibility and veracity ... are critical to the decisionmaking process.” Mathews, 424 U.S. at 343-44, 96 S.Ct. at 907. In the present case, Employee’s termination hinged on the credibility of witness testimony concerning whether Employee formed the intent to make false or deceptive statements on an invoice and whether Employee received money from a City contractor in exchange for tires. In this regard, Employee’s ease differs significantly from the drug testing cases cited by the majority, such as Saavedra v. City of Albuquerque, 73 F.3d 1525, 1533 (10th Cir.1996), which turned on evidence provided by objective lab tests. As noted in Mathews, 424 U.S. at 343-44, 96 S.Ct. at 907, the risk of error is significantly greater in cases where “issues of witness credibility and veracity ... are critical to the decisionmaking process” than in cases based upon objective “medical assessment of the worker’s physical or mental condition.” Indeed, where such factual controversies concerning witness credibility and veracity abound, there is more reason to afford a worker additional process even at a pretermination hearing. See Loudermill, 470 U.S. at 552-53, 105 S.Ct. at 1499 (Brennan, J., concurring in part and dissenting in part) (noting that due process at pre-termination hearing may require more than simple opportunity to argue or deny when there are “substantial disputes in testimonial evidence”).
57. In this case, the irregularities at Employee’s pre-termination hearing also increased the risk of error by turning the post-termination hearing into Employee’s only meaningful opportunity to challenge the charges against him. The quality of Employee’s pre-termination hearing is significant insofar as we “evaluate the constitutionality of post-termination process in light of the pretermination procedures it follows.” Benavidez, 101 F.3d at 626. I disagree with the majority’s conclusion that the risk of error at post-termination proceedings is sufficiently reduced by mere notice of the charges and a minimal opportunity to make an uncounseled statement at the pre-termination stage. Especially where the pre-termination proceedings are “cursory and informal,” Id. at 626, and no sworn testimony or documentary evidence is produced at the pre-termination stage, see Parker v. City of Fountain Valley, 127 Cal.App.3d 99, 179 Cal.Rptr. 351, 359 (1981), I cannot conclude that the risk of error at post-termination proceedings is reduced significantly.
58. The record in this ease indicates that the procedural protections afforded to Employee at his “pre-determination” hearing in April 1992 did not significantly reduce the risk of error at his post-termination hearing. The “hearing officer” involved in Employee’s pre-termination proceeding was one of Employee’s co-workers and was involved in the transactions on which Employee’s dismissal is premised. As such, this hearing officer had contact with the primary witnesses involved in the transaction at the very time it was occurring. Such contacts may affect the pre-termination hearing officer’s judgment of the witnesses’ credibility and increase the risk that he will make a decision based on evidence that is not in the record. Also, Employee’s counsel was not permitted to speak or ask questions on Employee’s behalf at the pre-termination hearing. This inability to be represented by counsel in a meaningful way may have affected Employee’s right to know opposing evidence and cross-examine adverse witnesses. Apart from the statements given by Employee and his spouse at the pre-termination hearing, the only other “evidence” before the pre-termination hearing officer consisted of hearsay, reports collected by a Fire Department employee with no training in conducting investigations of employee misconduct.
59. Employee raised these concerns at his April 1994 rehearing on remand from the district court, and a different hearing officer at the April 1994 rehearing found that Employee’s right to be heard in accordance with the procedures outlined in Loudermill was violated at the pre-termination hearing. While I would not reach the issue of whether Employee’s constitutional right to due process was violated at the pre-termination stage, I would nonetheless conclude that the pre-termination process afforded to Employee in this case cannot justify the City’s allocation of proof at the July 1992 post-termination proceeding. Since this post-termination proceeding was the first evidentiary hearing at which sworn testimony and documentary evidence was produced and submitted for cross-examination before a neutral hearing officer, I would conclude that the City, not the Employee, was required to bear the burden of proof at this hearing. See Parker, 179 Cal.Rptr. at 359; accord Tonkin v. Jackson County Merit Sys. Comm’n, 599 S.W.2d 25, 32 (Mo.Ct. App.1980).
60. Another factor that increases the risk of error is the obvious disparity in resources between the public employer and an employee who no longer has a job. Cf. Santosky v. Kramer, 455 U.S. 745, 762-64, 102 S.Ct. 1388, 1399-1400, 71 L.Ed.2d 599 (1982). The public employer in this case was in a position to shape the historical and procedural events that formed the basis for the employee’s termination. See id. at 763, 102 S.Ct. at 1400. We need to remember here that it is the employer that had the power and authority to terminate or otherwise discipline the employee. The employer had total control of the process used to address the alleged misconduct.
61. Finally, the risk of error is increased because the employee is burdened with proving an issue for which the employer may have better access to evidence. Compare Department of Inst. v. Kinchen, 886 P.2d 700, 708 (Colo.1994) (placing burden on public employer because employer is in best position to present reasons for its actions to hearing officer), with Lavine, 424 U.S. at 585, 96 S.Ct. at 1016 (placing burden of proving reasons for seeking public assistance on applicant because “an applicant’s motive should be best known by the applicant himself’). The risk of error is further increased when the employee is given the difficult task of proving a negative. See Kinchen, 886 P.2d at 708; Benavidez, 101 F.3d at 626. In this case, Employee categorically denied the charges against him. Yet, the City required him to prove that these charges were groundless in a proceeding where the City had total control over the process and better access to the evidence which formed the basis for the dismissal.
62. I would find that the City’s allocation of the burden of proof violates the Due Process Clause of the New Mexico Constitution because Employee’s interests outweigh the City’s interest in avoiding more process, see Loudermill, 470 U.S. at 544, 105 S.Ct. at 1494, and because the risk of error is reduced significantly by placing the burden of proof on the public employer.
The Settled Tradition of Placing the Burden of Proof on the Moving Party
63. In evaluating Employee’s due process claim, I would also “seek guidance ... from the common law[,]” Gutierrez, 116 N.M. at 435-36, 863 P.2d at 1056-57, and “review ... the historical treatment of the burden of proof’ in public employment cases to find if there is a “settled tradition.” Medina, 505 U.S. at 446, 112 S.Ct. at 2578. New Mexico courts traditionally have required the moving party to bear the burden of proof in administrative proceedings. See International Minerals & Chem. Corp. v. New Mexico Pub. Serv. Comm’n, 81 N.M. 280, 283, 466 P.2d 557, 560 (1970). Our New Mexico Supreme Court recently applied this rule to require an employer to bear the burden of proving misconduct where an employee was discharged for “willful misconduct” under the State’s unemployment compensation statute. See Fitzhugh, 122 N.M. at 184, 922 P.2d at 566; Chicharello, 930 P.2d at 172. I regard these cases as consistent with Judge Donnelly’s special concurrence in Boespflug, 114 N.M. at 776, 845 P.2d at 870, as well as the long list of authorities relying on statutory, administrative, or common-law traditions of placing the burden of proof on the public employer. See, e.g., Tonkin, 599 S.W.2d at 31 (citing administrative procedure statute); Parker, 179 Cal.Rptr. at 359 (citing prior case law); Montegue v. City of New Orleans Fire Dep’t, 675 So.2d 810, 813 (La.Ct.App.) (citing La. Const, art. X, § 8(A)), cert. denied, 679 So.2d 1389 (1996); see also 73A C.J.S. Public Administrative Law & Procedure § 128, at 36 (1983); 67 C.J.S. Officers & Public Employees § 156, at 559 (1978).
64. This practice of placing the burden of proof on the public employer also can be viewed as an outgrowth of more general principles of common law. See, e.g., 2 John W. Strong et al., McCormick on Evidence § 337, at 427 (4th ed. 1992) (“the party who has the burden of pleading a fact will have the burdens of producing evidence and of persuading the jury of its existence as well”); 1 Simon Greenleaf, Greenleaf on Evidence § 74, at 98 (5th ed. 1850) (quoting the old principle of Roman law: Ei incumbit probatio, qui dicit, non qui negat); Black’s Law Dictionary 516 (6th ed. 1990) (translating this principle as “[t]he proof lies upon him who affirms, not upon him who denies”); Richard Whately, Elements of Rhetoric ch. 3, § 2 (1846), excerpted in The Rhetorical Tradition: Readings from Classical Times to the Present 846-47 (Patricia Bizzell & Bruce Herzberg eds. 1990) (“no man is to be disturbed in his possessions till some claim against him shall be established. He is not to be called on to prove his right; but the claimant, to disprove it; on whom consequently the ‘burden of proof lies.”).
65. This settled tradition merits constitutional protection under the New Mexico Constitution, and such protection would aid in preserving national uniformity in the area of public employment law. See Gomez, 122 N.M. at 783, 932 P.2d at 7 (quoting Gutierrez, 116 N.M. at 436, 863 P.2d at 1057).
Conclusion
66. In this case it is the process, rather than the result, that requires close scrutiny. Rather than limit the review of the process so that it is merely incidental to justifying the result, I would apply the balancing test enunciated in Benavidez, 101 F.3d at 626, recognize the settled tradition of placing the burden of proof on the moving party, and construe the Due Process Clause of the New Mexico Constitution as providing more protection than its federal counterpart. Application of these authorities to the specific facts of this case would, in my opinion, sustain a finding that Employee’s right to due process was violated.
67.For the foregoing reasons, I would affirm the district court’s 1993 order; the majority deciding otherwise, I respectfully dissent.