GREEN V. KASE, 1992-NMSC-004, 113 N.M.
76, 823 P.2d 318 (S. Ct. 1992)
CASE HISTORY ALERT: see ¶2 - affects
1973-NMSC-048
IVA GREEN, Petitioner,
vs.
HONORABLE EDMUND H. KASE, DISTRICT JUDGE, Respondent.
SUPREME COURT OF NEW MEXICO
1992-NMSC-004, 113 N.M. 76, 823 P.2d 318
Original Prohibition Proceeding
John P. Viebranz, Santa Fe, NM, for Real
Party In Interest, The City of Socorro
RANSOM, MONTGOMERY, FRANCHINI
{1} Iva Green seeks by
extraordinary writ to overturn a district court pretrial order concerning the
presentation of proof at a trial de novo on appeal from an order of the Human
Rights Commission. The nature of and procedures for appeal from an order of the
commission are described in NMSA 1978, Section
28-1-13 (Repl. Pamp. 1991). The
pertinent provisions provide:
(A) Any person aggrieved by an order of the commission
may obtain a trial de novo in the district court... by filing a notice of
appeal within thirty days from the date of service of the commission's
order....
(B) If testimony at the hearing was transcribed, the
division shall, upon receipt of {*77} the
notice of appeal, file so much of the transcript of the record as the parties
requesting the transcript designate as necessary for the appeal with the
district court.
(C) Upon appeal, either party may request a jury. The
jurisdiction of the district court is exclusive and its judgment is final, subject
to further appeal to the supreme court.
{2} The district court ruled
that the jury must listen to the entire taped transcript of the commission
hearing prior to the introduction of additional relevant evidence. The court
apparently relied on our decision in
Keller v. City of Albuquerque,
85
N.M. 134,
509 P.2d 1329 (1973).
1
Because we find no statutory requirement that on trial de novo the jury or the
judge must hear the transcript of the proceedings before the commission, we
overrule any suggestion in
Keller to the contrary and grant the relief
Green has requested.
{3} In
Keller, this
Court first construed the role of the district court under NMSA 1953, Section
4-33-12 (Supp. 1971) (recompiled as NMSA 1978, Section
28-1-13). The appellants
contended the district court erred in rejecting their conclusion of law that
would have limited the court's standard of review to whether the commission
acted arbitrarily, capriciously, or fraudulently. We considered the import of
the term "trial de novo" used together with the statutory right to a
jury trial.
{4} In construing the term
"trial de novo" the
Keller Court canvassed the various New
Mexico statutory formulations concerning judicial review of agency decisions.
Although no New Mexico statute contained language identical to Section 28-1-13,
the Court observed that the many variations had been interpreted by the courts
of this state not to alter the traditional standard of review of agency decisions.
Only when read in conjunction with the language creating the right to a jury
trial could the Statute be said to contemplate more than review under the
arbitrary and capricious standard.
{5} After defining a trial by
jury to include a "full and fair hearing upon all relevant issues where
all questions of fact presented by the testimony are decided by the jury in
accordance with the principles of law,"
Keller, 85 N.M. at 137, 509
P.2d at 1332 (quoting
New England Novelty Co. v. Sandberg, 54 N.E.2d
915, 919 (Mass. 1944)), the Court concluded that "the district court has
the right to make an independent determination of the facts from the record in
the case and such additional relevant evidence as may be presented, and that
the general rule... [that agency decisions are to be reviewed under the
arbitrary and capricious standard] is not applicable."
Keller, 85
N.M. at 138, 509 P.2d at 1333. In addition, the Court opined that "the
statute
requires an independent review of the facts by the jury upon the
record made in the hearing before the Commission, and such additional relevant
evidence as may be presented by the parties."
Id. at 137, 509 P.2d
at 1332 (emphasis added).
{6} We disagree with the
Keller
Court's view of the role of the record in the trial de novo contemplated by
Section 28-1-13. In reviewing the operative statutory language, we fail to
perceive any limitation on the scope of the trial to the record from the
proceedings below. Indeed, the import of Subsection (A) that provides for a
"trial de novo,"
2
construed in conjunction with Subsection
{*78}
(C) which makes available a jury trial, is that the legislature intended to
grant the aggrieved party a full evidentiary hearing, not limited to or
constrained by the transcript of the commission hearing.
{7} Limiting the proceedings
to the transcript in many cases would eviscerate a critical component of the
jury's truth finding function -- the jury's ability to determine the
credibility of witnesses from live testimony. On the other hand, requiring the
jury first to review the entire transcript before hearing the same testimony
from witnesses, a procedure perhaps contemplated by
Keller, is
duplicative and burdensome.
{8} True, Subsection (B)
requires the division to file with the district court such portions of the
transcript of the record as the parties shall designate. That Subsection merely
describes the procedure for submitting a transcript deemed by the parties to be
necessary for an appeal. It cannot be read to require the district court to
review the transcript.
3
To hold that the legislature intended anything less than a full evidentiary
hearing -- a trial anew -- would read unwarranted limitations into the
otherwise clear command of Section 28-1-13. Accordingly, we grant the relief
Green has requested and remand to the trial court for proceedings consistent
with this opinion.
MONTGOMERY and FRANCHINI, JJ., concur.
1
The ruling by the trial court does not clearly state the reasons why the court
required the jury to hear the taped transcript, but the briefs of both parties
make clear that the dispute below concerned language in Keller that
purported to require review of the transcript at the trial de novo. Such
requirement is the issue we address today.
2
Review of other New Mexico statutes that employ the term "trial de
novo," reveals that the legislature construes that term to mean
"trial anew." Section 39-3-1 which prescribes the process for appeal
to the district court from inferior tribunals is entitled "Appeals to
district court; trial de novo." NMSA 1978, 39-3-1 (Repl. Pamp. 1991). The
text of that Section states that such action shall be "tried anew in said
courts on their merits, as if no trial had been had below." Id.
The distinction between trial de novo and a trial on, or
review of, the record is implicitly recognized in NMSA 1978, Section 40-4B-8
(Repl. Pamp. 1989), which describes the procedures for obtaining judicial
review of a decision of the child support hearing officer. Subsection (C) makes
a distinction between review "de novo" and review "on the
record." Under review on the record, Subsection (D) permits reversal of
the decision of the hearing officer only if the decision is arbitrary,
capricious, or an abuse of discretion; not supported by substantial evidence;
or not otherwise in accordance with the law. See also NMSA 1978,
72-7-1(E) (Repl. Pamp. 1985) (proceeding on appeal from state engineer
"shall be de novo as cases originally docketed in the district
court").
3
The transcript, of course, is not without purpose. It may be used to impeach
testimony at trial or for any other evidentiary purpose.