954 P.2d 109 (N.M.App. 1998), 18127, Ortiz v. Taxation and Revenue Dept., Motor Vehicle Div.
|Citation:||954 P.2d 109, 124 N.M. 677, 1998 -NMCA- 27|
|Opinion Judge:||PICKARD, Judge.|
|Party Name:||Christopher A. ORTIZ, Petitioner-Appellee, v. TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION, Respondent-Appellant.|
|Attorney:||Tom Udall, Attorney General, Rosemary Maestas, Ass't Attorney General, Santa Fe, Gail MacQuesten, Special Ass't Attorney General, Santa Fe, for Appellant. Lewis J. Terr, Las Vegas, for Appellee.|
|Judge Panel:||DONNELLY and BUSTAMANTE, JJ., concur.|
|Case Date:||January 23, 1998|
|Court:||Court of Appeals of New Mexico|
¶1 In this case of first impression, we consider whether a "revolving doors" statute prohibiting former public officers and employees from representing persons for pay before their former government agency employers is constitutional as applied to executive branch employees. On appeal, we are asked to address whether the district court erred in holding that NMSA 1978, Section 10-16-8(C) (1993), of the Governmental Conduct Act, as applied to attorneys, violates the separation-of-powers doctrine because it is an infringement by the legislature upon the
[124 N.M. 679] judiciary's exclusive province to regulate the practice of law. We hold that the district court erred, and we reverse.
¶2 In January 1996, Christopher Ortiz (Client) retained Lewis Terr (Attorney) to represent him in a driver's license revocation proceeding before the Department of Taxation and Revenue's Motor Vehicle Division (Department). Client's case stemmed from his refusal to take a breath test after being stopped on suspicion of DWI. Attorney was previously employed by the Department as an attorney working primarily on cases involving the Implied Consent Act. Three months after leaving government service, Attorney appeared before the Department to represent Client.
¶3 At the Department hearing, the hearing officer refused to allow Attorney to represent Client because of a perceived violation of Section 10-16-8(C), which prohibits former public officers and employees from representing persons for pay before their former government agency employers for a period of one year after leaving government service. The hearing officer noted that at one time Attorney had served as her supervisor and she was concerned that Attorney was attempting to use his former position to influence the hearing. The hearing officer provided Client with the option of either proceeding pro se or continuing the case to seek another attorney. Client chose to proceed pro se, and the Department issued a decision revoking Client's driver's license for a period of one year.
¶4 On appeal to the district court to review the Department's administrative decision, Attorney argued that Section 10-16-8(C), as applied to attorneys, usurped the judiciary's prerogative to regulate the practice of law. The district court ruled that Section 10-16-8(C) of the Governmental Conduct Act was an unconstitutional intrusion by the legislature into the judicial branch's authority to regulate the conduct of attorneys. The district court therefore overturned the revocation of Client's driver's license.
I. Standard of Review
¶5 A strong presumption of constitutionality surrounds a statute. See State ex rel. Udall v. Public Employees Retirement Bd., 120 N.M. 786, 788, 907 P.2d 190, 192 (1995) (legislative enactments are presumed valid); Wells v. County of Valencia, 98 N.M. 3, 6, 644 P.2d 517, 520 (1982) (legislature is presumed to have enacted a statute within the bounds of the constitution)...
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