274 P.3d 766
N.M. Ct. App.2011Background
- Wakeland sought unemployment benefits; Department denied benefits for wilful violation of employment terms.
- District court affirmed the Department’s decision in 2010.
- Wakeland filed a notice of appeal and a docketing statement rather than a petition for writ of certiorari.
- Rule 12-505 governs discretionary review; Rule 12-202/12-208 govern appeals as of right and docketing statements.
- Court concluded Wakeland was not entitled to an appeal as of right and her non-conforming petition was untimely unless unusual circumstances excused the delay.
- Court ultimately denied the non-conforming petition as untimely and discretionary review was not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wakeland is entitled to an appeal as of right | Wakeland argues for an appeal as of right from the district court’s decision | State and department argue review is discretionary via petition for writ of certiorari | Not entitled to appeal as of right |
| Whether a docketing statement can substitute for a petition for writ of certiorari | Wakeland seeks review using a docketing statement | Docketing statement can substitute only if it substantially complies with Rule 12-505 | Docketing statement can substitute if timely and substantially complies; otherwise not |
| Whether the non-conforming petition was timely filed and excusable | The filing should be excused due to uncertainty about procedure | Timeliness is mandatory; unusual circumstances required for excuse | Untimely; unusual circumstances not shown |
| Whether unusual circumstances could excuse late filing given uncertainty | Uncertainty about proper procedure constitutes unusual circumstances | Unusual circumstances require outside-control errors or extraordinary facts | Not established; late filing denied |
Key Cases Cited
- Roberson v. Board of Educ. of City of Santa Fe, 78 N.M. 297, 430 P.2d 868 (1967) (notice of appeal cannot substitute for petition for writ of certiorari)
- West Gun Club Neighborhood Ass’n v. Extraterritorial Land Use Auth., 2001-NMCA-013, 130 N.M. 195, 22 P.3d 220 (2001) (liberal acceptance of notices as petitions in some contexts)
- Dixon v. State, Taxation & Revenue Dep’t., 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680 (2004) (timely notice can substitute for petition in some cases; unusual circumstances doctrine used)
- Glynn v. State, Taxation and Revenue Dep’t., 2011-NMCA-031, 149 N.M. 518, 252 P.3d 742 (2011) (non-conforming notice may be accepted for merits review under liberal construction)
- Hyden v. New Mexico Human Servs. Dep’t., 2000-NMCA-002, 128 N.M. 423, 993 P.2d 740 (2000) (unusual circumstances exception; timing uncertainty discussed)
- Paule v. Santa Fe Cnty. Bd. of Cnty. Comm’rs, 2005-NMSC-021, 138 N.M. 82, 117 P.3d 240 (2005) (review discretionary; Article VI limits applicability)
- Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t, 2010-NMSC-034, 148 N.M. 692, 242 P.3d 259 (2010) (unusual circumstances affecting timeliness; liberal approach noted)
- Chavez v. U-Haul Co., 1997-NMSC-051, 124 N.M. 165, 947 P.2d 122 (1997) (scenarios where timeliness may be excused)
- Trujillo v. Serrano, 117 N.M. 273, 871 P.2d 369 (1994) (timeliness as mandatory precondition; unusual circumstances exception)