Los Chavez Cmty. Ass'n v. Valencia Cnty.

• Decision Date: 20 March 2012
• Docket Number: Nos. 30,458,30,459.,s. 30,458
• Citation: 277 P.3d 475,2012 -NMCA- 044
• Parties: LOS CHAVEZ COMMUNITY ASSOCIATION, et al., Petitioners–Appellees, v. VALENCIA COUNTY and the Board of County Commissioners, Respondents, and John Whisenant and Elias Barela, Interested Parties–Appellants.
• Court: Court of Appeals of New Mexico

277 P.3d 475

2012 -NMCA- 044

LOS CHAVEZ COMMUNITY ASSOCIATION, et al., Petitioners–Appellees,

v. VALENCIA COUNTY and the Board of County Commissioners, Respondents,andJohn Whisenant and Elias Barela, Interested Parties–Appellants.

Nos. 30,458, 30,459.

Court of Appeals of New Mexico.

March 20, 2012.

Hunt & Davis, P.C., Catherine F. Davis, Julie J. Vargas, Albuquerque, NM, for Appellees.

Chavez Law Firm, P.C., Steven M. Chavez, Los Lunas, NM, Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward Ricco, Jocelyn Drennan, Albuquerque, NM, for Appellants.

OPINION

CASTILLO, Chief Judge.

{1} The issue in this case is whether a county commissioner is required to recuse herself from voting on an application for a zoning map amendment if she is a first cousinto one of the applicants. We conclude that the due process protections of the state and federal constitutions, as well as the language in Article VI, Section 18 of the New Mexico Constitution, require recusal. Thus, we affirm the decision of the district court.

BACKGROUND

{2} The facts are not in dispute. Appellants John Whisenant and Elias Barela (Appellants) applied to the Valencia County Board of County Commissioners (Board) for a zone change to allow a planned residential subdivision on adjacent properties they own in Valencia County. Appellants sought to turn three parcels of land encompassing about forty acres into fifteen residential lots of between two and two-and-a-half acres in size. The Board, on a 3–2 vote, approved the change in zoning status from Agricultural Preservation to Rural Residential 2, which would allow division of the land into the smaller lot sizes. Commissioner Georgia Otero–Kirkham, who is a first cousin to Barela, voted in favor of the change. Before the vote was taken, a neighborhood resident asked Commissioner Otero–Kirkham at the public hearing whether she would recuse herself from the vote because of her family ties to Barela. Commissioner Otero–Kirkham stated that “we're not that close” and that she had sought an opinion from the Board's attorney who informed her that she need not recuse herself.

{3} After the Board approved the zoning change, Los Chavez Community Association and a number of individuals (Los Chavez) appealed the decision to district court. Los Chavez sought reversal on the grounds that the decision of the Board was arbitrary and capricious and that it lacked substantial evidentiary support. Los Chavez also maintained that the group was denied fundamental due process because Commissioner Otero–Kirkham's refusal to recuse herself presented an appearance of impropriety and bias, essentially denying Appellants' opponents of an opportunity for a fair hearing before the Board. The district court reversed the decision of the Board, relying on the “spirit” of the New Mexico Constitution and citing the failure to recuse as a due process violation. The court remanded the case for a hearing without Commissioner Otero–Kirkham's participation, and Appellants filed this appeal.

DISCUSSION

{4} In addition to the question of recusal and due process, we asked the parties to brief two threshold issues: whether the district court's order is final for purposes of this appeal and whether the issue is properly before us pursuant to a discretionary petition for writ of certiorari from the district court's exercise of its appellate jurisdiction or as a direct appeal as of right from the district court's exercise of its original jurisdiction. We address those threshold issues before proceeding to the main issue.

The Doctrine of Practical Finality Applies Here

{5} We first decide whether this appeal is properly before us on a final order from the district court. “In general, the right to appeal is restricted to final judgments and decisions.” High Ridge Hinkle Joint Venture v. City of Albuquerque, 119 N.M. 29, 33, 888 P.2d 475, 479 (Ct.App.1994). “A final order is commonly defined as an order that decides all issues of fact and law necessary to be determined or which completely disposes of the case to the extent the court had the power to dispose of it.” State v. Begay, 2010–NMCA–089, ¶ 11, 148 N.M. 685, 241 P.3d 1125. “Ordinarily, an order remanding a case for further proceedings in a lower court is not considered ‘final’ for purposes of appeal.” State v. Ahasteen, 1998–NMCA–158, ¶ 11, 126 N.M. 238, 968 P.2d 328,abrogated on other grounds by State v. Savedra, 2010–NMSC–025, 148 N.M. 301, 236 P.3d 20. But some appeals from cases otherwise not considered final may be permitted under the doctrine of “practical finality.” High Ridge Hinkle Joint Venture, 119 N.M. at 34, 888 P.2d at 480. The issue of finality is not to be treated robotically but instead “is to be given a practical, rather than a technical, construction.” Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 236, 824 P.2d 1033, 1038 (1992), limited on other grounds by Trujillo v. Hilton of Santa Fe, 115 N.M. 397, 398, 851 P.2d 1064, 1065 (1993). In reversals and remands by a lower reviewing court, it is helpful to consider “the context in which the district court ordered the remand.” Alba v. Peoples Energy Res. Corp., 2004–NMCA–084, ¶ 11, 136 N.M. 79, 94 P.3d 822. We consider this flexible approach, though, in light of “the strong policy in New Mexico disfavoring piecemeal appeals.” Kelly Inn No. 102, Inc., 113 N.M. at 239, 824 P.2d at 1041.

{6} Despite the policy against piecemeal litigation, “our jurisprudence has permitted appeals from certain orders even though a disputed issue remains.” Roark v. Farmers Grp., Inc., 2007–NMCA–074, ¶ 42, 142 N.M. 59, 162 P.3d 896. “Such interests must be of the greatest importance, given the countervailing powerful interest in avoiding piecemeal appeals.” State v. Apodaca, 1997–NMCA–051, ¶ 16, 123 N.M. 372, 940 P.2d 478. We note that “[t]he considerations that determine finality are not abstractions but have reference to very real interests—not merely those of the immediate parties, but, more particularly, those that pertain to the smooth functioning of our judicial system.” Kelly Inn No. 102, Inc., 113 N.M. at 239, 824 P.2d at 1041 (alteration in original) (internal quotation marks and citation omitted). We take note of that philosophy in the case before us, where “the underlying legal issue ... is important to the continuing ability of the [c]ommission to function[.]” Cox v. Mun. Boundary Comm'n, 1998–NMCA–025, ¶ 12, 124 N.M. 709, 954 P.2d 1186. Thus, we are mindful of “the policies of judicial efficiency and facilitation of meaningful appellate review.” Roark, 2007–NMCA–074, ¶ 45, 142 N.M. 59, 162 P.3d 896.

{7} In the matter at hand, we find two bases for allowing this appeal to proceed under the doctrine of practical finality. First, we agree with Appellants that the question of when a county commissioner must recuse herself in deciding a zoning-use matter involving a relative is one of continuing importance to the Board in Valencia County and to other such bodies statewide. As noted above, even though the circumstances in this case can be distinguished, the reasoning in Cox applies because the issue before us affects the operation of the Board and potentially other county boards across the state. The issue of the impartiality of a county zoning board commissioner in cases involving a relative is likely to be repeated in Valencia County and elsewhere. The policies of judicial efficiency and meaningful appellate review apply here.

{8} Second, fairness to the parties dictates that we accept this appeal. Appellants should not have to go back to the beginning of the application process if there is a chance that appellate review by this Court would spare them that time and expense in a process that could be burdensome and wasteful. See Begay, 2010–NMCA–089, ¶ 14, 148 N.M. 685, 241 P.3d 1125 (accepting appeal and refusing to subject a defendant to a potentially needless revocation hearing at the magistrate court level). We also agree with Appellants that a change in the makeup of the Board (since the election in 2010) and the effect of the current economic climate could make the district court's remand order tantamount to a denial because of the constantly shifting political and economic landscape. If this Court refuses to hear the appeal, the matter would be reconsidered by the Board absent Commissioner Otero–Kirkham, and if the application were rejected, Appellants would be faced with deciding whether to appeal on the same grounds as in the present case: that the district judge's decision regarding recusal was error. See id. ¶ 13. Deciding the issue now would eliminate the possibility of more years of litigation and appeal only to end up in this very spot. For the foregoing reasons, we conclude that practical finality is present in this case.

This Appeal Arises From the District Court's Original Jurisdiction

{9} We also asked the parties to brief whether the issue before us is a discretionary appeal pursuant to a writ of certiorari or if it is an appeal of right based on the district court's original jurisdiction. We agree with both parties that this appeal properly arises from the district court's original jurisdiction. “Whether the district court is possessed of jurisdiction over the subject matter of a case is a question of law that we review de novo.” Ottino v. Ottino, 2001–NMCA–012, ¶ 6, 130 N.M. 168, 21 P.3d 37.

{10} When appeals arise out of administrative proceedings, we distinguish between issues that the district court takes up under its appellate jurisdiction and those it addresses under its original jurisdiction. Our district courts are recognized as courts of general jurisdiction. See id. A district court is given “original jurisdiction in all matters and causes not excepted in this [C]onstitution, and such jurisdiction of special cases and proceedings as may be conferred by law, and appellate jurisdiction of all cases originating in inferior courts and tribunals in their respective districts [.]” N.M. Const. art. VI, §...