ROBIN WAKELAND, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS and GILMAN LAW OFFICES, LLC, Respondents-Appellees.
Docket No. 31,031
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
September 27, 2011
2012-NMCA-021
VANZI, Judge.
Certiorari Denied, January 19, 2012, No. 33,351
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge
Robin
Albuquerque, NM
Pro Se Appellant
Gilman Law Offices, LLC
James K. Gilman
Albuquerque, NM
for Appellee
Lucy Salsbury Payne
Albuquerque, NM
for Appellee N.M. Department of Workforce Solutions
OPINION
VANZI, Judge.
{1} Robin Wakeland‘s uncertainty about the proper procedure for seeking appellate review in this case caused her to file a notice of appeal and a docketing statement rather than a petition for writ of certiorari. Because Wakeland‘s docketing statement provides information sufficient to evaluate it as a petition for writ of certiorari, we will accept it as a non-conforming petition; however, the petition was untimely, and the fact that it was untimely is a procedural defect that will only be excused in unusual circumstances. Wakeland‘s uncertainty about the proper procedure is not an unusual circumstance that will excuse the late filing, so we deny her non-conforming petition as untimely.
BACKGROUND
{2} Wakeland sought unemployment compensation benefits after she was fired from her job. The New Mexico Department of Workforce Solutions (the Department) denied the unemployment benefits based on evidence that Wakeland had been terminated because she wilfully violated the terms and conditions of her employment. Wakeland appealed to the district court pursuant to
{3} Because it appeared that Wakeland did not have an appeal as of right to this Court and that she should have sought review by means of a petition for writ of certiorari, we asked the parties to brief the question whether the procedural defects warranted either dismissal of the appeal or denial of the non-conforming petition.
DISCUSSION
Wakeland Is Not Entitled to an Appeal as of Right
{4} Wakeland asserts that she is entitled to an appeal as of right to this Court from the district court‘s decision affirming the Department. Our law is clear, however, that she is not. In
A Non-Conforming Document Will Be Accepted as a Petition for Writ of Certiorari if the Document Provides Sufficient Information to Assess Its Merits as a Petition
{6} Because Wakeland is not entitled to an appeal to this Court as of right, she was required to seek discretionary review by means of a petition for writ of certiorari. She did not do so and instead filed a notice of appeal and a docketing statement. Wakeland asserts that this Court should exercise its discretion to accept these non-conforming documents and review her arguments on their merits.
{7} Generally, New Mexico courts have not been stringent about the form and content requirements of documents filed in an effort to seek appellate review, so long as the information provided in the non-conforming document is adequate to convey the basic intent of the party filing the document. See Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991) (holding that a notice of appeal was effective despite its failure to meet the requirements for form and content because it met the jurisdictional time and place of filing requirements and the opposing party was not prejudiced by the defects in the notice); Marquez v. Gomez, 111 N.M. 14, 15, 801 P.2d 84, 85 (1990) (holding that a docketing statement was effective as a substitute for a notice of appeal where the docketing statement was sufficient to convey the intent to appeal, it met the time and place of filing requirements for a notice of appeal, and the opposing party was not prejudiced); Johnson v. Johnson, 74 N.M. 567, 569, 396 P.2d 181, 182 (1964) (holding that a motion for leave to appeal was effective as a notice of appeal). This liberal approach has been adopted in order to further a policy of hearing appeals on their merits rather than dismissing them on technical grounds. See, e.g., Govich, 112 N.M. at 230, 814 P.2d at 98 (stating that the appellate court‘s “policy of facilitating the right of appeal by liberally construing technical deficiencies in a [document] otherwise satisfying the time and place of filing requirements“).
{8} Despite this liberal policy, in Roberson v. Board of Educ. of City of Santa Fe, 78 N.M. 297, 298-99, 430 P.2d 868, 869-70 (1967), our Supreme Court held that a notice of appeal is not an adequate substitute for a petition for writ of certiorari. In Roberson, a teacher was fired from her job by the board of education of the city of Santa Fe. Id. at 298, 430 P.2d at 869. The petitioner appealed to the state board of education, which affirmed. Id. Although there was no statute or rule permitting an appeal from this decision, the petitioner filed a notice of appeal with the district court. Id. The district court issued a writ of certiorari to the state board. Id. The city and state boards of education filed a motion to quash the writ and a motion to dismiss based on the petitioner‘s improper filing of a notice of appeal rather than a petition for writ of certiorari. Id. at 298-99, 430 P.2d at 869-70. The district court dismissed the matter because the petitioner was not entitled to an appeal as of right, and she failed to present a proper petition for writ of certiorari. Id. at 299, 430 P.2d at 870. The petitioner appealed to the New Mexico Supreme Court but never perfected the appeal, so the matter was not reviewed at that time. Id. Then the petitioner filed a proper petition for writ of certiorari in the district court, arguing that this petition related back and was a continuation of the issues raised by her notice of appeal. Id. The district court again dismissed, and the petitioner sought review in the New Mexico Supreme Court. Id.
{10} Despite our Supreme Court‘s decision in Roberson, this Court has issued several opinions indicating that we may, in our discretion, elect to treat a timely filed notice of appeal as a petition for writ of certiorari. In West Gun Club Neighborhood Ass‘n v. Extraterritorial Land Use Auth., 2001-NMCA-013, ¶ 3, 130 N.M. 195, 22 P.3d 220, this Court chose to treat a notice of appeal filed within the then-twenty-day period for filing petitions for writ of certiorari as a petition for such a writ. In doing so, West Gun Club relied on Hyden v. New Mexico Human Servs. Dep‘t., 2000-NMCA-002, 128 N.M. 423, 993 P.2d 740. Hyden, however, was not directly applicable since the issue in Hyden was about timeliness, not about the form or content of the documents that were filed. Id. ¶ 4. In Hyden, the question was whether unusual circumstances justified granting an extension of time to file two petitions for writ of certiorari when the parties had failed to meet the time of filing requirement that is a mandatory precondition to the exercise of this Court‘s jurisdiction. Id. ¶¶ 6-7, 14-15. Although the parties had filed notices of appeal, Hyden did not hold that a notice of appeal would be accepted as a substitute for a petition for writ of certiorari. In fact, the Court did not accept the notices filed in that case, but instead permitted the parties an extension of time to file proper petitions. Id. ¶¶ 4, 18.
{11} In Dixon v. State, Taxation & Revenue Dep‘t., 2004-NMCA-044, ¶ 9, 135 N.M. 431, 89 P.3d 680, this Court accepted a timely notice of appeal as a substitute for a petition for writ of certiorari without considering whether the notice substantially complied with the form and content requirements of
{12} Finally, in Glynn v. State, Taxation and Revenue Dep‘t., 2011-NMCA-031, ¶ 11, 149 N.M. 518, 252 P.3d 742, cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520 (No. 32,862, Mar. 8, 2011), this Court again elected to accept a notice of appeal filed within the then-twenty-day period for petitions for writ of certiorari as a substitute for a petition. This Court did not expressly rely on the “unusual circumstances” test, but did state that it would choose to accept the non-conforming document due to the “uncertainty
{13} Neither West Gun Club, Dixon, nor Glynn cited to Roberson. Although Roberson did not discuss the effect of the filing of a non-conforming document that addresses the merits of the issues raised on appeal, we conclude that Roberson is in fact controlling when the only document filed is a notice of appeal. Further, we take this opportunity to clarify West Gun Club, Dixon, and Glynn, and to explain that it is the docketing statement, not the notice of appeal, that we may accept as a substitute for a petition for writ of certiorari.
{14} Roberson has not been overruled, and neither has it been abrogated by our Supreme Court‘s more recent cases setting forth a liberal policy for accepting notices of appeal that are deficient as to form or content. Roberson simply holds that, because a notice of appeal contains no information about the issues raised on appeal, it cannot substitute for a petition for writ of certiorari since it does not substantially comply with the content requirements for a petition. 78 N.M. at 300, 430 P.2d at 871. A petition must contain a statement of the issues sought to be reviewed and a discussion of the facts material to the questions presented.
{15} In addition, the policy considerations that favor a liberal construction of a notice of appeal are not at issue when a party seeks discretionary appellate review. A notice of appeal is filed when a party is entitled to an appeal as of right. See
{16} Although a notice of appeal contains almost no substantive information related to a party‘s claims of error, a docketing statement is quite different. A docketing statement must contain a statement of the nature of the proceeding, a statement of the issues presented by the appeal, a summary of all facts material to a consideration of the issues, and a list of authorities supporting each claim of error, among other information.
{17} We recognize that there is some degree of unfairness in accepting a non-conforming document such as a docketing statement in lieu of a petition for writ of certiorari. For instance, a docketing statement has no page or type-volume limitations, whereas a petition for writ of certiorari does. Compare
A Non-Conforming Petition for Writ of Certiorari Must Meet the Timeliness Requirement of Rule 12-505(C), and an Untimely Filing Will Only Be Excused in Unusual Circumstances
{18} Our Supreme Court has held that the time requirement for filing a petition for writ of certiorari is a mandatory precondition to the exercise of an appellate court‘s jurisdiction to review a petition on its merits. See Gulf Oil Corp. v. Rota-Cone Field Operating Co., 85 N.M. 636, 636, 515 P.2d 640, 640 (1973) (per curiam) (holding that, as with the time requirement for a notice of appeal, the timely filing of a petition for writ of certiorari is a mandatory precondition to the exercise of an appellate court‘s jurisdiction that will not be excused absent unusual circumstances). Therefore, a non-conforming document such as a docketing statement must be filed within thirty days of the order to be reviewed, as is required for a petition. See
{19} In those unusual cases where a party happens to file both the notice of appeal and the docketing statement early so that the docketing statement is filed in this Court within thirty days of the district court‘s order and therefore meets the time requirement of
{20} But consistent with the rule that a timely filing of a petition for writ of certiorari is a mandatory precondition to the exercise of this Court‘s jurisdiction, in those cases in which a docketing statement is not filed in this Court within thirty days of the district court‘s order or judgment, this Court will not excuse the untimely filing of the non-conforming document absent a showing of the kind of unusual circumstances that would justify an untimely petition. See Gulf Oil Corp., 85 N.M. at 636, 515 P.2d at 640 (refusing to excuse the late filing of a petition for writ of certiorari where there were no unusual circumstances justifying the untimely filing). Our Supreme Court has explained that it is “[o]nly the most unusual circumstances beyond the control of the parties—such as error on the part of the court,” that will warrant overlooking the requirement that a document must be timely filed as a mandatory precondition to the exercise of a court‘s jurisdiction. See Trujillo v. Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994) (holding that there would be unusual circumstances to excuse the late filing of a notice of appeal to the district court if the untimely filing was caused by the magistrate court and remanding for a finding of fact on this issue). Our Supreme Court has also held that unusual circumstances may warrant waiving the mandatory timeliness requirement when the filing is not very late, and there are other unusual circumstances that were not caused by the court system but that were not within the control of the party seeking appellate review. See Chavez v. U-Haul Co., 1997-NMSC-051, ¶¶ 19-22, 124 N.M. 165, 947 P.2d 122 (hearing an appeal when the notice was filed fifty-eight minutes late, the appellant filed the notice pro se, his trial counsel had been in the process of arranging for substitute counsel, and after trial it was not clear which attorney would be responsible for prosecuting the appeal); see also Schultz, 2010-NMSC-034, ¶ 21 (holding that unusual circumstances required excusing the mandatory timeliness requirement where the notice of appeal was received two days late because the appellant had mailed the notice four days prior to the due date, and the fact that the United States Postal Service took more than four days to deliver the document from Albuquerque to Santa Fe was an unusual circumstance outside of the appellant‘s control).
{21} Although we may have applied the unusual circumstances test more liberally than this in Dixon and, arguably, in Glynn, that is because in both of those cases, we
{22} In considering whether to exercise this Court‘s discretion to waive the mandatory timeliness requirement for a late, non-conforming document that is to be construed as a petition for writ of certiorari, this Court is mindful of the fact that, unlike cases in which a party has an appeal as of right, review in this Court of the district court‘s order on appeal from an administrative agency is discretionary. Paule, 2005-NMSC-021, ¶ 14. Because
Wakeland‘s Non-Conforming Petition for Writ of Certiorari Was Late, and No Unusual Circumstances Excuse the Late Filing
{23} Because Wakeland‘s docketing statement contains information that is sufficient to determine whether the issues she raises meet the requirements for granting a petition for writ of certiorari, we construe her docketing statement as a petition. However, because her non-conforming petition was not filed within thirty days of the district court‘s order, this Court will excuse the late filing only if it was due to unusual circumstances beyond her control.
{24} Wakeland filed her notice of appeal and docketing statement well within the deadlines provided under
{25} Simply being confused or uncertain about the appropriate procedure for seeking review is not the sort of unusual circumstance beyond the control of a party that will justify an untimely filing. See Trujillo, 117 N.M. at 278, 871 P.2d at 374 (stating that “[o]nly the most unusual circumstances beyond the control of the parties—such as error on the part of the court[,]” will warrant overlooking the requirement that a document must be timely filed as a mandatory precondition to the exercise of a court‘s jurisdiction). But see Glynn, 2011-NMCA-031, ¶ 11 (finding unusual circumstances based on a party‘s uncertainty about the proper procedure for seeking review where the relevant document was considered to have been timely filed and the only question was whether unusual circumstances excused the filing of a document was non-conforming as to form and content). In very limited circumstances, this Court has held that uncertainty in the law will excuse the late filing of a petition. In Hyden, we held that unusual circumstances excused the late filing of two petitions for writ of certiorari where the law was so uncertain that the uncertainty essentially rose to the level of court-created error. 2000-NMCA-002, ¶¶ 14-17. There, the Legislature had enacted a comprehensive statute that significantly changed the way appeals could be taken from certain administrative agency decisions. Id. ¶ 2. The newly-enacted statute provided for a direct appeal to the district court and for discretionary review in the Court of Appeals by means of a petition for writ of certiorari. Id. The statute, however, provided no deadline within which to file a petition and stated that the relevant procedure would be “governed by
{26} We note that any uncertainty about whether review in this Court should be had as an appeal as of right or pursuant to discretionary review can always be addressed by filing both a timely notice of appeal in the district court and a timely petition for writ of certiorari in this Court. The party seeking review is free to explain the basis of their uncertainty about the proper procedure in their petition and to inform this Court that a notice of appeal has been timely filed in the district court. In the event the Court determines that the appeal, or some portion of the appeal, is of right, the party can request that the Court enter an order construing the petition as a docketing statement for those issues that are appealed as of right.
CONCLUSION
{27} Wakeland‘s non-conforming petition for writ of certiorari was not filed within thirty days of the district court‘s order and was therefore untimely. As her uncertainty about the proper procedure for seeking review is not an unusual circumstance that will excuse the late filing, we deny the petition.
{28} IT IS SO ORDERED.
LINDA M. VANZI, Judge
WE CONCUR:
CELIA FOY CASTILLO, Chief Judge
CYNTHIA A. FRY, Judge
Topic Index for Wakeland v. NM Dept of Workforce Solutions, No. 31,031
AE APPEAL AND ERROR
AE-CF Certiorari
AE-DS Docketing Statements
AE-NA Notice of Appeal
AE-TA Timeliness of Appeal
EL EMPLOYMENT LAW
EL-TE Termination of Employment
EL-UC Unemployment Compensation
PA PUBLIC ASSISTANCE
PA-UC Unemployment Compensation