N.M. Bd. of Veterinary Medicine v. Riegger

• Decision Date: 28 June 2007
• Docket Number: No. 29,790.,29,790.
• Citation: 2007 NMSC 044,164 P.3d 947
• Parties: NEW MEXICO BOARD OF VETERINARY MEDICINE, Appellee-Respondent, v. Michael H. RIEGGER, D.V.M., Appellant-Petitioner.
• Court: New Mexico Supreme Court

164 P.3d 947

2007 NMSC 044

NEW MEXICO BOARD OF VETERINARY MEDICINE, Appellee-Respondent, v. Michael H. RIEGGER, D.V.M., Appellant-Petitioner.

No. 29,790.

Supreme Court of New Mexico.

June 28, 2007.

Bannerman & Williams, P.A., Charlotte Lamont, Albuquerque, NM, for Petitioner.

Gary K. King, Attorney General, Jerome Marshak, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

SERNA, Justice.

{1} The New Mexico Board of Veterinary Medicine (the Board) issued a notice of contemplated action against veterinarian Michael Riegger, alleging violations of the Veterinary Practice Act (VPA), NMSA 1978, §§ 61-14-1 to -20 (1967, as amended through 2005). The Board considered the evidence, determined that Riegger violated several provisions of the VPA, Section 61-14-13(A), and ordered Riegger to fulfill several conditions, including payment of $22,021.83 in costs associated with the disciplinary proceeding. According to the Uniform Licensing Act (ULA), "[l]icensees shall bear all costs of disciplinary proceedings unless they are excused by the board from paying all or part of the fees or if they prevail at the hearing." NMSA 1978, § 61-1-4(G) (1993). Riegger appealed several issues to the district court, including the assessment of costs. The court found that Section 61-1-4(G) should be read to permit only those costs anticipated by Rule 1-054 NMRA, which governs the recoverable costs in civil cases before district courts. The Board then appealed to the Court of Appeals, which held that Section 61-1-4(G) "costs" are "not limited by the terms of Rule 1-054(D)." Bd. of Veterinary Med. v. Riegger, 2006-NMCA-069, ¶ 1, 139 N.M. 679, 137 P.3d 619.

{2} Riegger petitioned this Court for a writ of certiorari, asking us to reverse the Court of Appeals. While we agree with the Court of Appeals that Rule 1-054 provides only guidance to the assessment of costs under Section 61-1-4(G), we hold that the Board cannot seek reimbursement of expenses associated with the hiring of the hearing officer, the renting of the hearing room, or the Board members' per diem and mileage costs, and reverse the Court of Appeals with respect to these costs. We remand the case to the district court to reconsider the assessment of costs in accordance with this Opinion.

I. FACTS

{3} On August 9, 1999, Ms. Tea Schiano hired Riegger to provide veterinary care for her horse, Eagle. Riegger suggested Eagle undergo surgery to repair a urethral abnormality. After the October 1, 1999, surgery, Eagle developed myositis (muscle inflammation), and was suffering, unable to stand. Due to Eagle's condition, Riegger recommended that Eagle be euthanized, and Schiano directed Riegger to euthanize Eagle the morning after the surgery. As a result of Eagle's death, Schiano filed a complaint with the Board against Riegger.

{4} The Board issued a notice of contemplated action on August 15, 2001, and an amended notice on July 31, 2002. The amended notice alleged that Riegger committed four violations of the VPA, Section 61-14-13(A). Hearing Officer G.T.S. Khalsa conducted a hearing from September 9 to 13, 2002. Khalsa found Riegger's actions violated only certain provisions of Section 61-14-13(A) and submitted his recommendations to the Board on October 1, 2002.

{5} On November 11, 2002, the Board issued its decision, adopting only some of Khalsa's recommendations. The Board concluded that Riegger violated three subsections of Section 61-14-13(A) and placed Riegger on probation for one year pending fulfillment of five conditions, including payment of disciplinary hearing costs in the amount of $22,021.83. Riegger appealed several issues to the district court pursuant to NMSA 1978, Sections 61-1-17, 39-3-1.1 (1999) (pertaining to appeal of agency decisions), and Rule 1-074 NMRA (same), including the $22,021.83 payment requirement. The district court issued a memorandum opinion and order reversing some of the Board's findings on the alleged VPA violations and remanded Riegger's one-year probation and conditions to the Board in light of its findings. In regard to the disciplinary proceeding costs, the court ordered the Board to provide Riegger with an itemized bill limited to the costs authorized by the local district court version of Rule 1-054.

{6} The Board submitted an itemized list of costs totaling $21,535.91. The costs included hearing transcription costs, the Board's expert witness Dr. Elizabeth Martinez's fees, Hearing Officer Khalsa's fees, and the per diem expenses of the Board members. Riegger contested the transcription, expert witness, hearing officer, and per diem costs as unauthorized by Rule 1-054. The Board responded that Section 61-1-4(G) authorized it to collect "all costs of disciplinary proceedings" from Riegger and provided a new total of $22,210.91 as the cost of Riegger's disciplinary proceeding. The district court issued a December 16, 2004, order, finding the Board's assessment of fees was arbitrary and capricious and contrary to law, and allowed the Board to recover only $1,669.11 worth of costs.

{7} The Board submitted a motion for reconsideration, asking the district court to reconsider its decision regarding costs, and argued that Rule 1-054 did not apply, that Section 61-1-4(G) specifically provides for the recovery of all disciplinary proceeding costs, and that, consequently, the Board's decision was not arbitrary, capricious, or unlawful. In its motion, the Board, for the first time, explained in detail how the costs of Hearing Officer Khalsa, expert witness Dr. Martinez, deposition and hearing transcription, and hearing venue related to the disciplinary proceeding, included various invoices and bills related to these costs, and submitted a new total of $20,255.17 in disciplinary proceeding costs. In his response, Riegger reiterated that Section 61-1-4(G) costs should be read with Rule 1-054. Riegger averred that the Board should not recover Khalsa's costs because a hearing officer is used at the election of the board, see NMSA 1978, § 61-1-7(A) (1993), and that elective costs should not be passed along to him. Riegger utilized an elective cost argument with regard to the hearing venue and the hearing transcription costs, see NMSA 1978, § 61-1-12 (1981) (giving the Board discretion to record proceedings through transcription or tape recording). Riegger asserted the expert Dr. Martinez's costs could not be recovered because her testimony was cumulative of another expert's testimony, who donated his services to the Board. Riegger also challenged the Board's contention that the Board's per diem and mileage could be recovered because Section 61-14-4(E) requires these costs "be paid exclusively from fees received pursuant to the provisions of the [VPA]." Riegger agreed that he was responsible for the deposition costs for another expert in the amount of $253.95.

{8} The district court issued a memorandum opinion on February 21, 2005. Acknowledging no New Mexico cases have addressed the issue of Section 61-1-4(G) disciplinary proceeding costs, the district court looked to Gilman v. Nevada State Board of Veterinary Medical Examiners, 120 Nev. 263, 89 P.3d 1000 (2004), and In re Wang, 441 N.W.2d 488 (Minn.1989). Both Gilman and In re Wang looked to their respective state court rule equivalents of Rule 1-054 for guidance in determining which costs are recoverable in disciplinary proceedings. Relying on these cases, the district court concluded that Section 61-1-4(G) could not be interpreted to mean that Riegger should pay all costs associated with the disciplinary proceeding, but only those costs permitted by Rule 1-054. Regarding Khalsa's costs, the court opined that reimbursement would chill licensees from defending against charges and provide an incentive for a board to find against licensees. The court also cited a constitutional due process problem with reimbursement of Khalsa's costs, but stated that it did not need to reach the issue because Rule 1-054 resolved the issue. For the costs of the Board members' per diem and mileage, expert Dr. Martinez, transcription, and hearing venue, the court agreed with Riegger's arguments. The court denied the Board's motion for reconsideration and ordered that Riegger reimburse only $1,923.06 in costs.

{9} The Board petitioned the Court of Appeals for a writ of certiorari concerning the district court's order.¹ See Riegger, 2006-NMCA-069, ¶ 9, 139 N.M. 679, 137 P.3d 619. The Court held that Section 61-1-4(G) disciplinary proceeding costs were not limited to the costs included in Rule 1-054 because the plain language of Section 61-1-4(G) is clear; i.e., "a licensee `shall bear all costs of disciplinary proceedings.'" Id. ¶ 19 (quoting § 61-1-4(G)). While acknowledging that the district court could look to Rule 1-054 for guidance in reviewing whether the Board's assessment of costs was arbitrary or capricious, id. ¶ 22, the Court of Appeals disapproved of the district court's decision to exclude any costs that were not anticipated by Rule 1-054 because the "rule does not govern an award of costs in an administrative disciplinary action under the ULA," id. ¶ 19. The Court of Appeals also concluded that Gilman and In re Wang were not persuasive authority in part because "Section 61-1-4(G) uses mandatory language: a licensee who does not prevail on the merits `shall bear all costs of disciplinary proceedings.' The costs must be paid unless the Board excuses the licensee from paying or the licensee prevails and no other sanction is given." Id. ¶ 25 (quoting § 61-1-4(G)). The Court of Appeals also cited Sears v. Romer, 928 P.2d 745, 750 (Colo.Ct.App.1996), with approval, a case in which the Colorado Court of Appeals held that Colorado's civil procedure costs statute was not determinative of what costs are recoverable in an agency cost assessment. See Riegger, 2006-NMCA-069, ¶ 20, 139 N.M. 679, 137 P.3d 619. The Court of Appeals remanded Riegger's due process argument for determination by ...