2019 New Mexico Statutes
Chapter 12 - Miscellaneous Public Affairs Matters
Article 8 - Administrative Procedures Act
Section 12-8-11 - Procedures; evidence.

In adjudicatory proceedings:

A. irrelevant, immaterial or unduly repetitious evidence shall be excluded. The rules of evidence as applied in non-jury civil actions in the district courts shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. Agencies shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. No greater exclusionary effect shall be given any rule or privilege than would obtain in an action in the district court. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form;

B. all evidence, including any records, investigation reports and documents in the possession of the agency, of which it desires to avail itself as evidence in making a decision, shall be offered and made a part of the record in the proceeding, and no other factual information or evidence shall be considered, except as provided in Subsections C and D of this section. Documentary evidence may be received in evidence in the form of copies or excerpts, or by specific citation to page numbers in published documents;

C. every party may call and examine witnesses, introduce exhibits, cross-examine witnesses who testify and submit rebuttal evidence;

D. official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency, but whenever any officer or agency takes official notice of a fact, the noticed fact and its source shall be stated at the earliest practicable time, before or during the hearing, but before the final report or decision, and any party shall, on timely request, be afforded an opportunity to show the contrary;

E. the experience, technical competence and specialized knowledge of the agency and its staff may be utilized in the evaluation of the evidence;

F. any party may be represented by counsel licensed to practice law in the state or by any other person authorized by law;

G. if a person who has requested a hearing does not appear and no continuance has been granted, the agency may hear the evidence of witnesses who appear, and the agency may proceed to consider the matter and dispose of it on the basis of the evidence before it in the manner required by the Administrative Procedures Act. Where because of accident, sickness or other good cause, a person fails to request a hearing or fails to appear for a hearing which he has requested, the person may within a reasonable time apply to the agency to reopen the proceeding, and the agency, upon finding the cause sufficient, shall immediately fix a time and place for hearing and give the person notice as required by Section 10 [12-8-10 NMSA 1978] of the Administrative Procedures Act. At the time and place fixed, a hearing shall be held in the same manner as would have been employed if the person had appeared in response to the original notice of hearing;

H. in fixing the times and places for hearings, due regard shall be given to the convenience of the parties or their representatives;

I. where relief or procedure is not otherwise provided for, rules of practice and procedure applicable to civil actions in the district courts may be utilized by the parties at any stage of any proceeding, and if refused by the agency, then upon application to any district court having jurisdiction of the places of residence of a private party for the entry of an order providing for such relief or procedure; and

J. prior to each recommended initial or tentative decision, or decision upon agency review at any later stage of any agency proceeding, the parties shall be afforded a reasonable opportunity to submit, for the consideration of the agency member or employee participating in the decisions, briefs including:

(1) proposed findings of fact and law, together with supporting reasons therefor including citations to the record and of law; and

(2) in all cases where recommended initial decisions or tentative decision is subject to further agency review, exceptions to the decisions or recommended decisions and supporting reasons for such exceptions.

The record shall include all briefs, proposed findings and exceptions and shall show the ruling upon each finding, exception or conclusion presented. All decisions at any stage of any proceeding become a part of the record and shall include a statement of findings and conclusions, as well as the reasons or basis therefor, upon all material issues of fact, law or discretion involved, together with the appropriate rule, order, sanction, relief or the denial thereof.

History: 1953 Comp., § 4-32-11, enacted by Laws 1969, ch. 252, § 11.

Evidence. — The rules of evidence are inapplicable or relaxed under the federal and the state Administrative Procedure Acts and certain otherwise objectionable evidence may be admitted, but both acts require the exclusion of irrelevant and immaterial evidence. The rules of evidence are inapplicable in order to facilitate rather than hinder discovery and to allow a full opportunity to prepare. The exclusion of irrelevant and immaterial evidence is not inconsistent with relaxation of the rules of evidence. Archuleta v. Santa Fe Police Dep't, 2005-NMSC-006, 137 N.M. 161, 108 P.3d 1019.

Standard for admissibility of evidence. — While standard for admissibility in an administrative hearing under this act is one of whether the evidence has any probative value, New Mexico courts require that an administrative action be supported by some evidence that would be admissible in a jury trial, a requirement referred to as the legal residuum rule. Duke City Lumber Co. v. New Mexico Envtl. Improvement Bd., 1984-NMSC-042, 101 N.M. 291, 681 P.2d 717.

Discovery — There is no constitutional right to pre-trial discovery in administrative hearings. Archuleta v. Santa Fe Police Dep't, 2005-NMSC-006, 137 N.M. 161, 108 P.3d 1019.

Discovery of disciplinary records. — It was not error to deny department employee access to disciplinary records of fellow police officers in the employee's post-demotion hearing before the Santa Fe grievance review board. Archuleta v. Santa Fe Police Dep't, 2005-NMSC-006, 137 N.M. 161, 108 P.3d 1019.

Law reviews. — For article, "How to Stand Still Without Really Trying: A Critique of the New Mexico Administrative Procedures Act," see 10 Nat. Resources J. 840 (1970).

For article, "The Use of the Substantial Evidence Rule to Review Administrative Findings of Fact in New Mexico," see 10 N.M. L. Rev. 103 (1979-80).

For annual survey of New Mexico law relating to administrative law, see 12 N.M.L. Rev. 1 (1982).

For note, "Administrative Law - Whole Record Review and the Real Story Behind Walck v. City of Albuquerque," see 23 N.M.L. Rev. 237 (1993).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 2 Am. Jur. 2d Administrative Law § 294 et seq.

Administrative decision or finding based on evidence secured outside of hearing, and without presence of interested party or counsel, 18 A.L.R.2d 552.

Administrative decision by officer not present when evidence was taken, 18 A.L.R.2d 606.

Hearsay evidence in proceedings before state administrative agencies, comment note on, 36 A.L.R.3d 12.

73A C.J.S. Public Administrative Law and Procedure §§ 125 to 142.