State v. Joyce

• Decision Date: 24 June 1980
• Docket Number: No. 4429,4429
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Brian JOYCE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 30

614 P.2d 30

94 N.M. 618

STATE of New Mexico, Plaintiff-Appellee, v. Brian JOYCE, Defendant-Appellant.

No. 4429.

Court of Appeals of New Mexico.

June 24, 1980.

Jan E. Unna, Rothstein, Bailey & Unna, Santa Fe, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Jill Z. Cooper, Deputy Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

Convicted of two counts of criminal trespass contrary to § 30-20-13(C), N.M.S.A.1978, defendant appeals. His first point as to whether the policy of the Museum of New Mexico was unenforceable because of its failure to follow the requirements of the State Rules Act, § 14-4-1, et seq., N.M.S.A.1978, is dispositive. We reverse and remand to the trial court with directions that defendant be discharged.

On May 18, 1972, the Board of Regents of the Museum had a discussion on who would be allowed to sell goods under the portal. A policy was discussed wherein the area under the portal would be reserved exclusively for Indian merchants selling genuine handmade Indian arts and crafts. At the February, 1976, meeting, the policy was formally adopted.

Mr. Ewing, Director of the Museum of New Mexico, testified that in July of 1978, he contacted the district attorney's office to have a notice prepared informing non-Indian vendors that they must leave the portal. The notice was first distributed on July 25, 1978. On the morning of July 26th, the notice was again distributed and its contents were read over a bullhorn. Defendant was also served with a copy of the notice. Mr. Ewing testified that the defendant, Brian Joyce, was present on the morning of July 26th when the notice was read. The defendant returned later in the afternoon of the 26th. He was again told to leave and, when he refused, he was arrested. At the time of this arrest, the defendant stated that he was aware of the policy. Defendant was again arrested on July 28th for another violation.

Subsequent to defendant's filing of his notice of appeal, he moved this Court for summary dismissal, without prejudice, so he could file a motion for a new trial in which he would present his claim that the "policy" of the museum had not been filed in accordance with the State Rules Act and, therefore, could not be enforced. At this hearing the State stipulated that the regulation had not been filed pursuant to the State Rules Act. The trial court denied the motion for a new trial and this appeal followed.

The pertinent sections of the State Rules Act are as follows:

14-4-2. Definitions.

As used in the State Rules Act (14-3-24, 14-3-25, 14-4-1 to 14-4-9 NMSA 1978):

A. "agency" means any agency, board, commission, department, institution or officer of the state government except the judicial and legislative branches of the state government;

C. "rule" means any rule, regulation, order, standard, statement of policy, including amendments thereto or repeals thereof issued or promulgated by any agency and purporting to affect one or more agencies besides the agency issuing such rule or to affect persons not members or employees of such issuing agency. An order or decision or other document issued or promulgated in connection with the disposition of any case or agency decision upon a particular matter as applied to a specific set of facts shall not be deemed such a rule nor shall it constitute specific adoption thereof by the agency. Such term shall not include rules relating to the management, confinement, discipline or release of inmates of any panel or charitable institution, the Springer Boys' School, the Girls' Welfare Home, of any hospital nor to rules made relating to the management of any particular educational institution, whether elementary or otherwise, nor to rules made relating to admissions, discipline, supervision, expulsion or graduation of students therefrom.

14-4-4. (Filing and distribution of publications and reports; official depository.)

Each agency issuing any publication, pamphlet, report, notice, proclamation or similar instrument shall immediately file five copies thereof with the records center. The records center shall deliver three copies to the state library which shall keep one copy available for public inspection during office hours.

All other copies may be circulated. The state library is designated to be an official depository of all such publications, pamphlets, reports, notices, proclamations and similar instruments.

14-4-5. (Filing and compliance required for valid rule.)

No rule shall be valid or enforceable until it is so filed and shall only be valid and enforceable upon such filing and compliance with any other law.

The State's argument that the policy established by the Board of Regents is not a "rule" within the meaning of the Act is frivolous. It is without question that the statement of policy by the Board of Regents was a "rule." The jury was instructed with regard to "violation of Museum policy." Any argument that there is a "grandfather" clause is without merit, since no such clause exists in the State Rules Act. The fact that the policy was of ancient lineage does not exempt it from the State Rules Act.

The State argues that the "lawfulness of the museum 'policy' is not determined by the State Rules Act." The State's argument here misses the point. In claiming rights under the State Rules Act, the defendant is not (at this point) contesting the constitutionality of the policy. The State's argument would equate the federal court's finding of constitutionality (s...