Ortiz v. Taxation & Revenue Department

1998 NMCA 027, 954 P.2d 109, 124 N.M. 677
CourtNew Mexico Court of Appeals
DecidedJanuary 23, 1998
Docket18127
StatusPublished
Cited by8 cases

This text of 1998 NMCA 027 (Ortiz v. Taxation & Revenue Department) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ortiz v. Taxation & Revenue Department, 1998 NMCA 027, 954 P.2d 109, 124 N.M. 677 (N.M. Ct. App. 1998).

Opinion

OPINION

PICKARD, Judge.

1. In this case of first impression, we consider whether a “revolving doors” statute prohibiting former public officers and employees from representing persons for pay before their former government agency employers is constitutional as applied to executive branch employees. On appeal, we are asked to address whether the district court erred in holding that NMSA 1978, Section 10-16-8(0) (1993), of the Governmental Conduct Act, as applied to attorneys, violates the separation-of-powers doctrine because it is an infringement by the legislature upon the judiciary’s exclusive province to regulate the practice of law. We hold that the district court erred, and we reverse.

FACTS

2. In January 1996, Christopher Ortiz (Client) retained Lewis Terr (Attorney) to represent him in a driver’s license revocation proceeding before the Department of Taxation and Revenue’s Motor Vehicle Division (Department). Client’s case stemmed from his refusal to take a breath test after being stopped on suspicion of DWI. Attorney was previously employed by the Department as an attorney working primarily on cases involving the Implied Consent Act. ' Three months after leaving government service, Attorney appeared before the Department to represent Client.

3. At the Department hearing, the hearing officer refused to allow Attorney to represent Client because of a perceived violation of Section 10-16-8(C), which prohibits former public officers and employees from representing persons for pay before their former government agency employers for a period of one year after leaving government service. The hearing officer noted that at one time Attorney had served as her supervisor and she was concerned that Attorney was attempting to use his former position to influence the hearing. The hearing officer provided Client with the option of either proceeding pro se or continuing the case to seek another attorney. Client chose to proceed pro se, and the Department issued a decision revoking Client’s driver’s license for a period of one year.

4. On appeal to the district court to review the Department’s administrative decision, Attorney argued that Section 10-16-8(C), as applied to attorneys, usurped the judiciary’s prerogative to regulate the practice of law. The district court ruled that Section 10-16-8(0 of the Governmental Conduct Act was an unconstitutional intrusion by the legislature into the judicial branch’s authority to regulate the conduct of attorneys. The district court therefore overturned the revocation of Client’s driver’s license.

DISCUSSION

I. Standard of Review

5. A strong presumption of constitutionality surrounds a statute. See State ex rel. Udall v. Public Employees Retirement Bd., 120 N.M. 786, 788, 907 P.2d 190, 192 (1995) (legislative enactments are presumed valid); Wells v. County of Valencia, 98 N.M. 3, 6, 644 P.2d 517, 520 (1982) (legislature is presumed to have enacted a statute within the bounds of the constitution); Española Hous. Auth. v. Atencio, 90 N.M. 787, 788, 568 P.2d 1233, 1234 (1977) (“there is a presumption of the validity and regularity of legislative enactments”); Old Abe Co. v. New Mexico Mining Comm’n, 1995-NMCA-180, 121 N.M. 83, 96, 908 P.2d 776, 789. Not only are statutes presumptively valid, but they are normally reviewed under the rational-basis test. Richardson v. Carnegie Library Res taurant, Inc., 107 N.M. 688, 693, 763 P.2d 1153, 1158 (1988). Furthermore, a statute will not be declared unconstitutional unless we are satisfied that the legislature went outside the constitution in enacting it. Id.; see also Española Hous. Auth., 90 N.M. at 788, 568 P.2d at 1234 (statute is upheld unless the court is satisfied beyond all reasonable doubt that the challenged legislation violates the constitution); City of Farmington v. Fawcett, 114 N.M. 537, 540, 843 P.2d 839, 842 (Ct.App.1992) (“it is the duty of the appellate court to uphold such legislation unless satisfied beyond all reasonable doubt that the legislation is outside the constitution”). This Court will also not inquire into the wisdom, policy, or justness of a legislative act. Española Hous. Auth., 90 N.M. at 788, 568 P.2d at 1234; see also Kaiser Steel Corp. v. Revenue Div., 96 N.M. 117, 124, 628 P.2d 687, 694 (Ct.App.1981) (appellate court is under no duty to question the wisdom, policy, or justness of a legislative act).

II. Separation of Powers

6. The question before us is whether Section 10-16-8(0 violates Article III, Section 1 of the New Mexico Constitution because it impermissible infringes upon the judiciary’s exclusive province to regulate the practice of law. Section 10-16-8(0) states:

For a period of one year after leaving government service or employment, a former public officer or employee shall not represent for pay a person before the government agency at which the former public officer or employee served or worked.

7. Section 10-16-8(0 prevents the “revolving door” of successive government and private employment by prohibiting former governmental employees from representing persons for pay before their former government agency employers for a period of one year after leaving government service. Attorney argues that this type of legislation, as applied to attorneys, violates the separation-of-powers clause by intruding upon the inherent power of the judiciary to regulate the conduct of attorneys. Therefore, Attorney asks us to “read out” former executive branch attorneys from the statute’s application. We disagree.

8. Other state courts have reviewed challenges to “revolving door” legislation similar to the statute in this case and have concluded that such provisions do not violate separation of powers. See Howard v. State Comm’n on Ethics, 421 So.2d 37, 39 (Fla.Dist.Ct.App. 1982) (“revolving door” provision does not interfere with Supreme Court’s authority to regulate practice of law); Midboe v. Commission on Ethics for Pub. Employees, 646 So.2d 351, 358-59 (La.1994) (ethics code provisions which apply to all public servants, including attorneys, do not violate separation of powers as long as the legislation does not impede or frustrate the judiciary’s authority to regulate the practice of law); Forti v. New York State Ethics Comm’n, 75 N.Y.2d 596, 555 N.Y.S.2d 235, 243-44, 554 N.E.2d 876, 884-85 (1990) (“revolving door” legislation was not a legislative attempt to usurp judicial power to regulate the practice of law); In re Advisory from the Governor,

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State ex rel. Public Employees Retirement Ass'n v. Longacre
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State v. Duran
1998 NMCA 153 (New Mexico Court of Appeals, 1998)

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Bluebook (online)
1998 NMCA 027, 954 P.2d 109, 124 N.M. 677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-taxation-revenue-department-nmctapp-1998.