Pinnell v. BOARD OF COUNTY COM'RS, 18,831.

• Citation: 982 P.2d 503,127 N.M. 452
• Decision Date: 05 May 1999
• Docket Number: No. 18,831.,18,831.
• Parties: Paige PINNELL, Miriam White, and Valentine Valdez, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF SANTA FE COUNTY, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

982 P.2d 503

127 N.M. 452

Paige PINNELL, Miriam White, and Valentine Valdez, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF SANTA FE COUNTY, Defendants-Appellees.

No. 18,831.

Court of Appeals of New Mexico.

May 5, 1999.

Steven Sugarman, Claybourne Clarke, Aztec, for Appellants.

Denice Brown Kulseth, Deputy County Attorney, Rosanna C. Vazquez, Assistant County Attorney, Santa Fe, for Appellees.

OPINION

ARMIJO, Judge.

{1} This appeal presents a novel issue of federal constitutional law. Three Plaintiffs, each of whom resides in District Four of Santa Fe County, sought declaratory and permanent injunctive relief claiming a violation of their rights to equal protection as guaranteed by the Fourteenth Amendment of the United States Constitution. For its part, the Board, appellee in this action, claims that Plaintiffs' action was dismissed below for failure to join an indispensable party and is further barred as moot.

{2} For the reasons stated below, we conclude that Plaintiffs' claim was not dismissed on joinder grounds and is not moot. Applying a rational-basis review of the constitutional question presented, we affirm the decision of district court, dismissing Plaintiffs' complaint on its merits.

I. FACTUAL AND PROCEDURAL BACKGROUND

{3} The facts are not in dispute. The Board of County Commissioners of Santa Fe County (the Board) consists of five commissioners, each elected by and representing a single district. The Board elects a chairperson from one of the five commissioners. This position rotates each year.

{4} On July 9, 1997, the Board considered a proposal to grant four variances from the County's terrain management ordinance for the purposes of constructing a new 9.3-acre parking lot at the Santa Fe Ski Area. The new parking lot would serve customers at the ski basin, which is located in County Commission District Four. Before the question came to a vote, however, Commissioner Gonzales left the meeting. When the remaining commissioners did formally address the issue, they voted two-to-one to grant the variances to the Santa Fe Ski Company.

{5} Per the Resolution here at issue, Chairperson Anaya, in whose district Plaintiffs live, did not vote. As chair, he is only entitled to vote to break a tie cast by a quorum. After the other commissioners voted, however, Chairman Anaya "made it clear for the record" that he would have voted against granting the variances. Accordingly, had the chairperson been permitted to vote on this matter, the vote would have been two-to-two and the variances would not have been approved.

A. THE PROCEEDINGS BELOW

{6} Plaintiffs filed their complaint on August 12, 1997, alleging, inter alia, a cause of action against the Board under 42 U.S.C. § 1983 (1994) for deprivation of their rights to equal protection. Their complaint sought to move the district court to declare unconstitutional both the Resolution and the Board's decision. It further sought to have the court "[r]emand the decision" for a new vote.

{7} Plaintiffs also filed a Motion for Temporary Restraining Order, asking the district court therein to enjoin implementation of the Board's July decision. The trial court heard the motion on August 13, 1997. After oral argument, the trial court denied the motion for Plaintiffs' failure to state a claim under 42 U.S.C. § 1983, namely, a violation of their equal protection rights. In so ruling, the trial court took judicial notice of the "rules of procedure of the Board ... grant[ ] to the Chairman certain authority that is not available to the other Commissioners."

B. RESOLUTION No. 1996-17

{8} On February 13, 1996, the Board approved the Resolution here challenged. Among other provisions, the Resolution requires that the Board elect one of its five members as chairperson. Section III of the Resolution further provides, in pertinent part:

C. Vote. The chairperson may only vote on any item in order to break a tie vote. In those meetings and only in those meetings in which the number of members that constitute a quorum equals three members, the chairperson has all rights as any other member for purposes of voting and making and seconding motions.

....

E. Duties. The chairperson's duties include:

1. Opening meetings;

2. Announcing the business before the board and consideration of the agenda items;

3. Recognizing board members and speakers from the audience entitled to speak;

4. Allowing legitimate motions to proceed to a vote;

5. Allowing members of the board to speak on matters for consideration by the board;

6. Stating and putting to a (calling for the) vote all questions and motions properly made;

7. Announcing the results of all votes;

8. Preventing motions and testimony from becoming unduly delayed, disrespectful, frivolous, and unduly cumulative; and

9. Enforcing order and decorum at all times, and ensuring that members of the board and the public conduct themselves in a respectful and appropriate manner.

F. Discussion. The chairperson may take part in any discussion of any matter before the board.

G. Motions. The chairperson may not make motions or second any motions except as otherwise provided in Section III.C. of these Rules.

H. Decorum. The chairperson will assure that these rules are fully complied with at all board meetings.

{9} The Resolution further permits the chairperson to participate in the questioning of staff members on matters concerning recommended action and to cross-examine applicants who may be allowed to testify concerning a staff report or recommended action. This right to cross-examine also extends to those other witnesses who may be allowed to testify before the Board on matters of County business. In addition, the Resolution requires that the chairperson direct the manner in which testimony is received from members of the public in favor of or in opposition to an agenda item.

II. DISCUSSION

A. Failure to Join Indispensable Parties

{10} In its answer brief, the Board contends that the district court dismissed Plaintiffs' complaint below for failure to join an indispensable party, that is, the Santa Fe Ski Company. It therefore argues, in effect, that this Court should not reach the constitutional claim presented, but should affirm the dismissal on joinder grounds. See In re Mary L., 108 N.M. 702, 705, 778 P.2d 449, 452 (Ct.App.1989)

(observing that appellate courts will not reach constitutional questions unnecessarily). For several reasons, we reject the Board's argument.

{11} As a preliminary matter, we note that the Board fails to draw our attention to any entered finding or order in the record that supports its allegation of the trial court's grounds for dismissal. This alone is grounds to reject its argument. See Beyale v. Arizona Pub. Serv. Co., 105 N.M. 112, 116, 729 P.2d 1366, 1370 (Ct.App.1986)

.

{12} We further note, however, that the Board never submitted a written answer to Plaintiffs' original complaint; nor did it respond in writing to Plaintiffs' motion for temporary injunctive relief. At trial, the Board orally raised the question as to whether Plaintiffs' complaint could be remedied without joining the Ski Company; however, the trial court never issued any formal ruling on this issue.

{13} The order in the record from which Plaintiffs appeal dismisses the action below on its merits: it makes no mention of the Plaintiffs' alleged failure to join the Ski Company.

See Rosen v. Lantis, 1997-NMCA-033, ¶ 12, 123 N.M. 231, 938 P.2d 729

("This court has no authority to supply those missing findings." (citing Landskroner v. McClure, 107 N.M. 773, 775, 765 P.2d 189, 191 (1988))). Moreover, the Board's own submitted draft of a stipulated order made no mention of dismissal for failure to join an indispensable party. Cf. Cox v. Hanlen, 1998-NMCA-015, ¶ 34, 124 N.M. 529, 953 P.2d 294 ("A party who does not tender specific findings of fact waives review of the findings on appeal."). We therefore conclude that the Board failed to pursue, and thus waived, this argument below.

{14} Furthermore, we decline in this instance to affirm on grounds not relied upon below. On appeal, this Court will not assume the role of the trial court and delve into such a fact-dependant inquiry as joinder. See Sims v. Sims, 1996-NMCA-078, ¶ 53, 122 N.M. 618, 930 P.2d 153

(noting that joinder is a more factual issue than legal); State v. Franks, 119 N.M. 174, 177, 889 P.2d 209, 212 (Ct.App.1994) ("[O]rdinarily it is improper for this Court to engage in fact-finding; that is a trial-court function."). To do so without allowing Plaintiffs the opportunity to develop the record in response to the Board's factual allegations would work undue prejudice upon them. See Eldin v. Farmers Alliance Mut. Ins. Co., 119 N.M. 370, 376, 890 P.2d 823, 829 (Ct.App.1994) ("[W]e will not affirm on a ground not relied upon by the trial court if it would be unfair to appellant to do so."). We find the prejudice especially apparent in this case as the Board never explicitly raised the issue below and subsequently waived the argument without a ruling. Cf. Franks, 119 N.M. at 177,

889 P.2d at 212 (noting prejudice in affirming trial court decision upon grounds to which appellant had no opportunity to respond). Accordingly, we conclude that the trial court did not dismiss Plaintiffs' action on joinder grounds and refuse to base affirmance of the trial court upon such grounds.

B. Mootness

{15} On appeal, the Board further challenges Plaintiffs' claim as moot. In this regard, it asserts two factual grounds. First, it argues that Commissioner Anaya is no longer the chairperson and thus can now vote on all matters before the Commission. Second, as of the date of the trial court's ruling, the trees in the 9.3-acre tract at issue have been cut down and construction of the parking lot has begun. Accordingly, the Board argues, there is no live case or controversy. We are not persuaded.

{16} In addition to the injury alleged in the prohibition against Chairperson...