Maso v. STATE OF NEW MEXICO TAXATION

2004 NMSC 28, 2004 NMSC 028, 96 P.3d 286, 136 N.M. 161
CourtNew Mexico Supreme Court
DecidedJuly 14, 2004
Docket28,480
StatusPublished
Cited by38 cases

This text of 2004 NMSC 28 (Maso v. STATE OF NEW MEXICO TAXATION) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maso v. STATE OF NEW MEXICO TAXATION, 2004 NMSC 28, 2004 NMSC 028, 96 P.3d 286, 136 N.M. 161 (N.M. 2004).

Opinion

OPINION

CHÁVEZ, Justice.

{1} Petitioner Raphael Maso appeals from an opinion of the Court of Appeals which held that an English-language notice of a license-revocation proceeding that had been personally served on a Spanish-only speaker when he was arrested for driving under the influence of alcohol satisfies due process. On appeal to this Court, Petitioner argues for the first time in the course of these proceedings that we should grant greater protection under the due process clause of Article II, Section 18 of the New Mexico Constitution than is recognized under the due process clause found in the Fourteenth Amendment to the United States Constitution. We hold that Petitioner failed to preserve his state constitutional argument for an appellate determination. Because we also hold that the Court of Appeals correctly analyzed the notice requirement under the federal constitution, we affirm.

I. Facts and Proceedings

{2} On December 8, 2001, Albuquerque Police stopped Petitioner at a sobriety checkpoint and arrested him for driving under the influence of alcohol, contrary to NMSA 1978, § 66-8-102 (1999, prior to 2002 and 2003 amendments). Petitioner took a breath test which resulted in a .17 reading, more than twice the legal limit. He speaks and reads little to no English. Upon his arrest, as required by NMSA 1978, § 66-8-111.1 (1993, prior to 2003 amendments), the arresting officer served Petitioner with a notice of revocation which informs him, in English, that his driving privileges will be revoked in twenty days unless he requests a hearing in writing within ten days of service of the notice. Petitioner did not file his request for a hearing until well after the ten days had expired. His attorney sent a letter dated January 5, 2002, but postmarked January 7, 2002, requesting a hearing and explaining that his client “is a Spanish speaker and did not understand the Notice of Revocation or the fact that he had to submit his request within ten days.” On January 9, 2002, the Motor Vehicle Division of the Taxation and Revenue Department issued a standard form letter rejecting Petitioner’s request for a hearing on the grounds that the request was not made within ten days.

{3} Petitioner appealed the decision to the district court, which concluded that the denial of the hearing did not violate due process. Petitioner then appealed to the Court of Appeals, which affirmed the district court’s decision. The Court of Appeals held that “English-language notice regarding administrative revocation is compatible with due process when it is personally delivered to a driver during the course of his arrest for driving under the influence.” Maso v. State of New Mexico Taxation and Revenue Dep’t, 2004-NMCA-025, ¶ 21,135 N.M. 152, 85 P.3d 276. The Court of Appeals also affirmed the district court’s determination that the personal delivery of an English-language notice “satisfies due process, regardless of whether [Petitioner] understood English, because under the circumstances a reasonable driver who did not understand the contents of the notice would inquire further.” Id. ¶ 20.

{4} Petitioner filed a petition for writ of certiorari to this Court, raising only one issue: “whether, given the distinctive characteristics of New Mexico’s population, the Court of Appeals properly found that English language notice regarding administrative revocation is compatible with due process when it is personally delivered to a Spanish-only speaking individual.” Despite this general reference to “due process,” Petitioner’s only argument to this Court is that we should grant greater protections under the state constitution’s due process clause, N.M. Const, art. II, § 18, than under its federal counterpart. Indeed, Petitioner agrees that the federal constitution does not protect the right that he is seeking in this appeal: the right to have notice of a license-revocation proceeding which has been personally served on him printed in both Spanish and English.

II. State Due Process Claim

{5} Under Rule 12-216(A) NMRA 2004, in order to preserve a claim for appellate review, “it must appear that a ruling or decision by the district court was fairly invoked.” In State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1, we clarified how, under our interstitial approach to interpreting the State Constitution, a party must fairly invoke a ruling that our constitution provides greater protection than its federal counterpart. If the relevant state constitutional provision has previously been interpreted to provide greater rights, the litigant need only: “(1) assert[] the constitutional principle that provides the protection sought under the New Mexico Constitution, and (2) show[ ] the factual basis needed for the trial court to rule on the issue.” Id. ¶ 22. Where, however, there is no established precedent for interpreting the relevant state constitutional provision differently from its federal counterpart, “a party also must assert in the trial court that the state constitutional provision at issue should be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state provision differently from the federal provision.” Id. ¶23. Although Gomez was a criminal ease, its preservation requirement is an interpretation of Rule 12-216 of the Rules of Appellate Procedure, and we can see no reason why it should not apply to a constitutional argument concerning a license-revocation proceeding. For the following reasons, we hold that Petitioner has not satisfied the Gomez requirements for preserving his argument under the state due process clause.

{6} In both his initial pleading to the district court, styled a “petition for writ of certiorari,” and his subsequent statement of appellate issues, Petitioner did not mention the state constitution, but instead argued that the denial of a hearing violated his “right to procedural due process” because he cannot be said to have knowingly and intelligently waived his right to the hearing when he did not understand the notice. The district court rejected this argument, concluding that Petitioner was on “inquiry notice” when he received the English notice, which required him to take steps to have the notice translated. Having failed to do so, he cannot complain that he did not knowingly and intelligently waive his right to the hearing.

{7} In his brief-in-chief to the Court of Appeals, Petitioner made assertions relating to New Mexico’s unique characteristics, but did not refer to the state constitution or argue that it should provide greater protections than the federal constitution. Instead, Petitioner simply argued that, because the notice requirement of due process requires that efforts at notice be appropriate to the circumstances, New Mexico’s unique characteristics are relevant to that inquiry. Significantly, in his reply brief to the Court of Appeals, Petitioner for the first time describes the demographic composition of New Mexico’s population, citing to the United States Census.

{8} Thus, Petitioner’s argument that the New Mexico Constitution should offer greater protections than the federal constitution is made for the first time to this Court. Under Rule 12-216(A) and Gomez, this argument was not preserved for appellate review, and we decline to address it. Indeed, this case perfectly illustrates the purposes behind the Gomez preservation requirement.

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Cite This Page — Counsel Stack

Bluebook (online)
2004 NMSC 28, 2004 NMSC 028, 96 P.3d 286, 136 N.M. 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maso-v-state-of-new-mexico-taxation-nm-2004.