Keller v. City of Albuquerque

• Decision Date: 11 May 1973
• Docket Number: No. 9522,9522
• Citation: 509 P.2d 1329,85 N.M. 134,1973 NMSC 48
• Parties: , 5 Fair Empl.Prac.Cas. (BNA) 1366, 5 Empl. Prac. Dec. P 8662 Albert J. KELLER, Complainant-Appellant, v. CITY OF ALBUQUERQUE, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 1329

509 P.2d 1329

85 N.M. 134, 5 Fair Empl.Prac.Cas. (BNA) 1366,

5 Empl. Prac. Dec. P 8662

Albert J. KELLER, Complainant-Appellant, v. CITY OF ALBUQUERQUE, Respondent-Appellee.

No. 9522.

Supreme Court of New Mexico.

May 11, 1973.

David L. Norvell, Atty. Gen., Richard A. Griscom, Agency Asst. Atty. Gen., Santa Fe, James Sidwell, Albuquerque, for appellant.

Lynn D. Smith, Jr., Albuquerque, for appellee.

OPINION

MONTOYA, Justice.

Complainant Albert Keller (Keller) filed a charge of unlawful discrimination with the Human Rights Commission (Commission), wherein he alleged that the City of Albuquerque (City), terminated his employment as an Albuquerque police officer solely on the basis of age, contending that the City violated the New Mexico Human Rights Act, § 4--33--1 et seq. N.M.S.A., 1953 Comp. (Repl.Vol. 2, 1971 Pocket Supp.). The Commission found in favor of Keller and ordered the City to compensate Keller in the amount of $1,000 and to reinstate him until at least December 31, 1971.

The City appealed this decision to the district court. The appeal was submitted to the district court on the transcript of the Commission hearing and memorandum brief. The district court set aside the order of the Commission and entered judgment in favor of the City. Both the Commission and Keller appeal and they will be referred to hereafter as 'appellants.'

Appellants assert that the trial court erred when it refused to accept appellants' requested conclusion of law No. 3 that:

'The Commission did not act arbitrarily, capriciously, or fraudulently in arriving at this determination, nor was it acting outside the scope of its authority.'

Also, that the trial court erred in concluding:

'That the legally admissible evidence contained in the transcript of the Commission hearing, does not support the findings of the Human Rights Commission.'

Appellants base their argument on the principle of administrative law that limits a reviewing court's scope of review to certain restricted questions of law. In Johnson v. Sanchez, 67 N.M. 41, 48--49, 351 P.2d 449, 454 (1960), this court stated that:

'* * * on appeals from administrative bodies the questions to be answered by the court are questions of law and are actually restricted to whether the administrative body acted fraudulently, arbitrarily or capriciously, whether the order was supported by substantial evidence, and, generally, whether the action of the administrative head was within the scope of his authority. (Citations omitted.)'

The same general rule has been followed in appeals from other administrative agencies, other than the ones involved in the cases cited in Johnson v. Sanchez, supra. Such agency decisions reviewed, and the cases following the general rule stated above, are: (Board of Medical Examiners) Seidenberg v. New Mexico Board of Medical Exam., 80 N.M. 135, 452 P.2d 469 (1969); (State Tax Commission) Hardin v. State Tax Commission, 78 N.M. 477, 432 P.2d 833 (1967); (Bank Examiner) S.I.C. Finance-Loans of Menaul, Inc. v. Upton, 75 N.M. 780, 411 P.2d 755 (1966); (Public Service Commission) Llano, Inc. v. Southern Union Gas Company, 75 N.M. 7, 399 P.2d 646 (1964); (State Engineer) Ingram v. Malone Farms, Inc., 72 N.M. 256, 382 P.2d 981 (1963), prior to the adoption of Art. XVI, § 5, N.M.Const. in 1967; (Oil Conservation Commission) Continental Oil Co. v. Oil Conservation Com'n, 70 N.M. 310, 373 P.2d 809 (1962).

The citation of the above cases and agencies involved illustrates the continued application of the general rule involving scope of review by the district courts in appeals from decisions or orders of administrative agencies. It would, therefore, appear that those precedents would be dispositive of the first two points raised by appellants.

However, a close examination of the appeal statute, § 4--33--12, supra, reveals that this statute has peculiar language relating to appeals from decisions of the Commission not present in other laws relating to appeals from administrative agencies. We are here concerned with § 4--33--12, supra, which states in pertinent part:

'A. Any person aggrieved by an order of the commission may obtain a trial de novo in the district court of the county where the discriminatory practice occurred * * *.

'B. Upon receipt of the notice of appeal, the commission shall file so much of the transcript of the record as the parties stipulate necessary for the appeal with the district court.

'C. Upon appeal, either party may request a jury. The jurisdiction of the district court is exclusive and its judgment is final, subject to further appeal to the Supreme Court.'

It, therefore, presents a novel question that has not heretofore been considered by this court.

We do not consider the question as to whether the Commission is an inferior tribunal within the purview of § 21--10--1, N.M.S.A., 1953 Comp.

In the instant case, § 4--33--12, supra, refers specifically to a 'trial de novo' in the district court. It further provides that a transcript of the record before the commission shall be filed as is necessary for the appeal to the district court, and then, in subsection (C) provides that, on appeal, either party may request a jury. What then is the significance of the different statutory language as to the procedure on appeal? Since we have no decided case construing this statute, we must, from the words of the statute, interpret its meaning and determine the legislative intent.

A review of some of the statutes on scope of review from administrative agencies indicates that different language is used to specify the type of review. Our New Mexico Statutes referred to hereinafter use such expressions as 'hearing shall be de novo,' § 46--5--16, N.M.S.A., 1953 Comp. (Liquor Control Chief); 'The trial upon appeal shall be de novo, without a jury,' § 65--3--22, N.M.S.A., 1953 Comp. (Oil Conservation Commission); 'the cause shall be heard de novo on the law and the facts,' § 48--17--52, N.M.S.A., 1953 Comp. (State Bank Examiner); 'shall be tried de novo,' § 48--18--27, N.M.S.A., 1953 Comp. (Commissioner of Securities), but this same statute contains the following language: 'Said hearing shall not be by trial de novo, but by review only.' Other statutes providing for review of administrative agencies contain such language as 'the judge shall sit without a jury' and state the standards to be followed upon review, such as violation of constitutional or statutory provisions by hearing board, errors of law, or that the findings are unsupported by substantial evidence, or that the decision is arbitrary or capricious. See § 67--26--20, N.M.S.A., 1953 Comp. (Repl.Vol. 10, pt. 1, 1961). Other statutes only provide for vacating of the agency's order if it is 'unreasonable or unlawful.' See § 68--9--5, N.M.S.A., 1953 Comp. (Public Service Commission). It would serve no useful purpose to attempt to review all statutes or decisions as to the scope of review allowed. Suffice it to say that the general rule, as stated in Johnson v. Sanchez, supra, is what we have consistently followed, and cases holding otherwise have been expressly overruled. See Kelley v. Carlsbad Irrigation District, 71 N.M. 464, 379 P.2d 763 (1963), overruling Farmers Development Company v. Rayado Land & Irrigation Co., 18 N.M. 1, 133 P. 104 (1913).

We then must consider the effect of the statutory language 'upon appeal, either party may request a jury.' Having a jury review of agency decisions in New Mexico represents a departure from our statutory procedure in effect upon that subject and, therefore, there is a lack of any decisions on the question.

A 'trial by jury' has been defined as comprehending

'* * * a full and fair hearing upon all relevant issues where all questions of fact presented by the testimony are decided by the jury in accordance with the principles of law given to them in the instructions by the judge. * * *'

New England Novelty Co. v. Sandberg, 315 Mass. 739, 750, 54 N.E.2d 915, 919 (1944).

It would then follow that the statute requires an independent review of the facts by the jury upon the record made in the hearing before the Commission, and such additional relevant evidence as may be presented by the parties. In the instant case, neither party requested a jury and, therefore, a waiver is to be implied, because it is implicit in the statute that a demand or request be made. However, when the judge, rather than the jury, sits as the trier of facts, he occupies the same position as the jury and would decide all questions of fact independently of any previous determination made by the Commission.

Provisions of a statute mandating a review by a jury of a decision of an administrative agency, although novel in New Mexico, have been enacted in other states. Oregon has such a statute providing for an appeal to the circuit court, with a right to a trial by jury on any question of fact, after a final order of the Industrial Accident Commission. In Tice v. State Industrial Accident Commission, 183 Or. 593, 606, 195 P.2d 188, 194 (1948), the Supreme Court of Oregon, in construing such a statute, said as follows:

'While it may seem incongruous to some that a jury should be permitted to sit in judgment to review the action of the commission in a matter of this kind, there can be no doubt of the power of the legislature to authorize such procedure, and, when once it is determined that the legislature has so ordained, that must be an end of the matter so far as the courts are concerned. 'The right of appeal does not depend upon whether the determination appealed from involves the exercise of discretion by the tribunal rendering the decision, but upon the statute creating the right to appeal * * *.' Chebot v. State Industrial Acc. Comm., supra (166 Or. 660, 668, 221 P. 792, 795). To the same effect is Grant v. State Industrial Acc. Comm., 102 Or. 26, 201 P. 438. Much of what is said in the opinion in that case as to the right to appeal from a discretionary order ...