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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 CARLOS SEDILLO, 3 Petitioner-Petitioner, 4 v. No. A-1-CA-35658 5 NEW MEXICO RACING COMMISSION, 6 Respondent-Respondent.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Denise Barela-Shepherd, District Judge
9 Santiago E. Juarez 10 Albuquerque, NM
11 for Petitioner
12 Hector H. Balderas, Attorney General 13 Santa Fe, NM 14 Audrey K. McKee, Assistant Attorney General 15 Albuquerque, NM
16 for Respondent 17 MEMORANDUM OPINION 18 VARGAS, Judge.
1 {1} Petitioner Carlos Sedillo, appeals the district court’s order affirming the New 2 Mexico Racing Commission’s (the Commission) decision to suspend him from 3 training horses, fine him, and order the surrender of purses after two horses he trained 4 tested positive for a prohibited Class 1 drug. Sedillo argues that the Commission erred 5 when it relied on drug test results from a lab that had not been approved by the 6 Commission to find that he violated the rules governing horse trainers. Sedillo further 7 contends that his due process rights were violated on several grounds. Finally, Sedillo 8 claims that, in the event he did violate the rules, the penalty imposed by the 9 Commission was improper. Concluding that Sedillo failed to show that the 10 Commission’s decision was arbitrary, capricious, an abuse of discretion, not supported 11 by substantial evidence, or otherwise not in accordance with the law, we affirm. 12 BACKGROUND 13 {2} Sedillo was the trainer of record for two horses that ran at the Ruidoso Downs 14 on May 25, 2012. Following each horse’s race, blood and urine samples were taken 15 from them. The urine samples of both horses tested positive for Dermorphin,1 a Class 16 1 drug. The board of stewards appointed to supervise the races held a hearing on the 17 matter on September 30, 2012, and ruled that Sedillo had violated 15.2.6.9(C)(1)
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18 The Dermorphin concentration for one sample was 76.8 nanograms per 19 milliliter, while the other was 48.3 nanograms per milliliter. It is unimportant to our 20 analysis on appeal which sample belonged to which horse.
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1 NMAC, 15.2.6.11(A) NMAC, and 16.47.1.10(B)(1) NMAC. See NMSA 1978, § 60- 2 1A-12 (2007) (setting out the powers and duties of stewards); 15.2.3.8 NMAC 3 (authorizing stewards to supervise licenses and persons responsible for the conduct 4 of racing to insure compliance with the New Mexico Horse Racing Act (the Act), 5 NMSA 1978, §§ 60-1A-1 to -30 (2007, as amended through 2018), and its regulations, 6 including authority to discipline violators in accordance with the regulations). Sedillo 7 appealed the board of stewards’ ruling to the Commission. The Commission appointed 8 a hearing officer, who, following a hearing, issued a report recommending a five-year 9 suspension of Sedillo’s trainer license, a five thousand dollar fine, and a loss of purse 10 for each horse that tested positive for Dermorphin. The hearing officer made several 11 findings, including:
12 5. Iowa State Racing Chemistry Lab (“ISU”) . . . was . . . a 13 Commission approved laboratory.
14 ....
15 9. In May and June 2012, ISU did not have the capabilities to 16 test or detect Dermorphin.
17 ....
18 13. [University of California, Davis (UC Davis)] is capable of 19 testing for and detecting Dermorphin.
20 ....
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1 16. Testimony was presented and evidence introduced by the 2 Commission that all primary samples of blood and urine taken from the 3 Sedillo Horses (collectively the “Primary Samples”) were sent to UC 4 Davis. [Sedillo] presented no conflicting testimony.
5 {3} The Commission unanimously adopted the hearing officer’s report, including 6 her findings of fact, conclusions of law, and recommended penalty. Pursuant to Rule 7 1-075 NMRA, Sedillo petitioned the district court to review the Commission’s 8 decision. The district court granted the petition and affirmed the Commission’s 9 decision. Sedillo then sought review by this Court, filing a petition for writ of 10 certiorari, which we granted. See Rule 1-075 NMRA. 11 DISCUSSION2 12 {4} Sedillo makes several assertions of error that can be summarized into three 13 issues. First Sedillo asserts that the decision of the Commission’s director to send the 14 samples to a laboratory at UC Davis rather than one at Iowa State University, was 15 error. Sedillo also argues that his due process rights were violated by the introduction 16 of hearsay and documentary evidence, the failure to follow procedures, the failure to 17 give him notice of prohibited substances, the failure to establish a chain of custody for
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17 Sedillo makes numerous factual assertions throughout his brief without 18 providing any citations to the record. The citations that Sedillo does make to the 19 record are often inaccurate or fail to offer any support to his assertions. Throughout 20 this opinion, we address only those arguments that satisfy our appellate rules, though 21 many do so only by the narrowest of margins. See Rule 12-318 NMRA (requiring 22 briefing to provide citations to relevant authorities as well as to the record proper).
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1 the samples, and the deprivation of his right of cross-examination. Lastly, Sedillo 2 argues that the penalty assessed against him was contrary to the Commission’s rules 3 and regulations. 4 {5} In reviewing the Commission’s decision, “[w]e apply the same administrative 5 standard of review as the district court sitting in its appellate capacity.” Rayellen Res., 6 Inc. v. N.M. Cultural Prop. Review Comm., 2014-NMSC-006, ¶ 15, 319 P.3d 639. 7 Specifically, we consider whether the Commission’s decision was “arbitrary, 8 capricious, or an abuse of discretion; not supported by substantial evidence in the 9 record; or, otherwise not in accordance with law.” Id. (internal quotation marks and 10 citation omitted); see Rule 1-075(R). 11 Agency Director’s Authority to Designate Laboratory 12 {6} Section 60-1A-14(A) of the Act requires the Commission to adopt rules 13 governing the handling and post-race testing of blood and urine samples. The statute 14 further requires that specimens taken from horses be divided into two samples 15 designated as the “official sample” and the “split sample,” with the official sample 16 “tested by the commission or its designated laboratory[.]” Section 60-1A-14(B). In 17 accordance with its mandate, the Commission promulgated 15.2.6.10 NMAC, 18 establishing rules and guidelines for sample collection, storage, shipment, and testing, 19 including the requirement that “[a] primary testing laboratory must be accredited by
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1 [the association of racing commissioners international] and approved by the 2 [C]ommission.” 15.2.6.10(B)(2) NMAC. 3 {7} On appeal, Sedillo asserts that the UC Davis laboratory was not “approved by 4 the [C]ommission” as required by 15.2.6.10(B)(2) NMAC and, instead, was chosen 5 by Vince Mares (Mares), its executive director. Mares, Sedillo argues, did not possess 6 the authority of the Commission to approve the laboratory; and, the Commission’s 7 failure to comply with the regulatory requirements for approval of testing laboratories 8 precludes it from revoking his license and imposing penalties on the basis of those test 9 results. 10 {8} Sedillo’s interpretation of the statute and accompanying regulations is too 11 narrow. See Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 14, 147 N.M. 12 678, 228 P.3d 462 (acknowledging the rule that courts interpreting the New Mexico 13 Administrative Code apply the same rules as used in statutory interpretation); see also 14 Key v. Chrysler Motors Corp., 1996-NMSC-038, ¶ 14, 121 N.M. 764, 918 P.2d 350 15 (“We are to read the statute in its entirety and construe each part in connection with 16 every other part to produce a harmonious whole.”). The Act requires the Commission 17 to adopt rules “to implement the . . . Act and to ensure that horse racing in New 18 Mexico is conducted with fairness and that the participants and patrons are protected 19 against illegal practices” on the racing grounds. Section 60-1A-5(A). Among the
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1 various rules promulgated as a result of this mandate was 15.2.1.8 NMAC, setting 2 forth the Commission’s purpose, powers, responsibilities, and general authority, 3 including the authority to “delegate to the [Commission’s] director . . . all powers and 4 duties necessary to fully implement the purposes of the Act.” 15.2.1.8(B)(2) NMAC. 5 {9} At Sedillo’s administrative hearing, the hearing officer issued a finding, which 6 Sedillo does not contest, that the Iowa State University laboratory was not capable of 7 testing for or detecting Dermorphin—the drug discovered through the UC Davis tests. 8 The Commission concluded that the duties and authority bestowed upon Mares as the 9 Commission’s director, authorized him to designate an alternate laboratory to test for 10 drugs that could not be detected by Iowa State University, the laboratory approved by 11 the Commission, in order “to protect the integrity of horse racing, to ensure the health 12 and welfare of race horses and to safeguard the interests of the public and the 13 participants in racing.” Under the circumstances, Mares’s decision to have the samples 14 tested by another lab, one capable of detecting more prohibited substances, was 15 necessary to ensure those involved with the May 25, 2012 races were protected 16 against illegal practices. See 15.2.1.8(B)(2) NMAC. As Sedillo did not address the 17 Commission’s authority to delegate duties such as the approval of testing laboratories 18 to its director, we conclude that Sedillo has failed to demonstrate that the 19 Commission’s decision on this matter “was arbitrary, capricious, or an abuse of
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1 discretion; not supported by substantial evidence in the record; or otherwise not in 2 accordance with law.” Rayellen Res., Inc., 2014-NMSC-006, ¶ 15 (internal quotation 3 marks and citation omitted). 4 Due Process 5 {10} We turn now to Sedillo’s due process arguments, beginning with his assertion 6 that the Commission’s decision is not supported by the evidence because the test 7 results on which the Commission relied were in the form of hearsay and documentary 8 evidence. Sedillo also argues that he was deprived of his right to “cross-examine the 9 only evidence introduced against him, namely the test results.” Presumably, this 10 argument is meant to illustrate the shortcomings of the introduction of hearsay and 11 documentary evidence. Sedillo’s arguments, however, ignore the Commission’s rules, 12 which explicitly allow for the presentation and admission of both hearsay and 13 documentary evidence. See 15.2.1.9(B)(6)(b) NMAC and 15.2.1.9(C)(12)(b) NMAC. 14 Indeed, 15.2.1.9(B)(6)(b) NMAC and 15.2.1.9(C)(12)(b) NMAC allow for the 15 admissibility of hearsay and documentary evidence if it is “of a type that is commonly 16 relied on by reasonably prudent people.” 15.2.1.9(B)(6)(b). He fails to demonstrate 17 why those results are not commonly relied on by a reasonably prudent person. See 18 15.2.1.9(C)(12)(b) NMAC.
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1 {11} Furthermore, while Sedillo is correct that the rules governing the Commission 2 proceedings provide for and require parties to have an opportunity to cross-examine 3 each witness, see 15.2.1.9(C)(10)(f) NMAC, he does not point with any particularity 4 to any witness he was unable to question or any line of inquiry that he was unable to 5 pursue. Instead, the record suggests he was given, and indeed availed himself of, the 6 opportunity to cross-examine witnesses, including Dr. Scott Stanley, the chief chemist 7 at the UC Davis testing laboratory who testified about the contents of UC Davis’ drug 8 test results, as well as the scientific soundness of the procedures employed by UC 9 Davis. In light of Sedillo’s failure to develop his argument, we need not address it 10 further. Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 11 P.3d 1076 (declining to review an “undeveloped argument” where the brief relied on 12 several facts but did not cite to the record to support the appellant’s assertions). 13 {12} Sedillo next argues that the procedures used to handle the samples were 14 contrary to the procedures required by the Act and its accompanying regulations. 15 Sedillo’s assertions regarding improper procedure center around the manner in which 16 the split samples were handled.3 Though he argues that the test results are suspect for
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15 Despite insisting the split samples were improperly handled, Sedillo also 16 asserts that the test results for the split samples did not detect any prohibited 17 substances, though he does so without any citation to the record. He appears to seek 18 an inference that these samples prove he is innocent of committing the violation at 19 issue in this case. However, even if we were to assume this fact is true, it carries little 20 persuasive value because the Iowa State University lab that tested these samples was
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1 several reasons related to the handling and storage of the split samples, Sedillo fails 2 to direct us to the portion of the record that supports his argument. See Rule 12- 3 318(A); In re Estate of Heeter, 1992-NMCA-032, ¶ 15, 113 N.M. 691, 831 P.2d 990 4 (stating that we will not search the record to find evidence to support a party’s claim). 5 Further, it is unimportant for our purposes on appeal whether some irregularity existed 6 regarding the split samples, as the results from the official sample tested by UC Davis, 7 were prima facie evidence that a prohibited drug was administered to the horses and 8 was present in the horses’ bodies while they participated in their respective races. 9 15.2.6.9(C)(1) NMAC (4/30/2012); see also 15.2.6.9(C)(3) NMAC (4/30/2012) (“[A] 10 person may not administer or cause to be administered by any means to a horse a 11 prohibited drug . . . during the 24-hour period before post time for the race in which 12 the horse is entered.”). The procedural compliance regarding the split samples is 13 collateral to and cannot serve as a basis for the reversal of the commission’s decision. 14 Cf. Claridge v. N.M. Racing Comm’n, 1988-NMCA-056, ¶¶ 37-38, 107 N.M. 632, 763 15 P.2d 66 (concluding that the challenge alleging a violation concerning a collateral 16 matter not directly at issue before the Commission did not provide sufficient 17 justification for overturning an administrative agency’s decision).
21 apparently unable to test for Dermorphin, the presence of which is the basis for the 22 violations in this case. Sedillo was sanctioned on the basis of the positive test results 23 obtained by UC Davis.
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1 {13} Sedillo also argues that his due process rights were violated because he was not 2 given notice that certain substances were prohibited and that the Commission failed 3 to demonstrate a chain of custody for the split sample in compliance with its rules. 4 Sedillo’s briefing on both of these issues relies on facts without citing to the record 5 to support his assertions. We again note that Sedillo’s argument regarding chain of 6 custody focuses primarily on split samples and, is therefore collateral to the issues 7 raised in this case, as it was the original sample that was the basis for the penalties 8 assessed against him. Cf. id. (discussing collateral matter in administrative agency 9 case). Additionally, while he claims that no list of prohibited substances was posted 10 in the test barn or the racing secretary’s office as required by 15.2.6.9(A) NMAC 11 (4/30/2012), he provides no citations to the record and instead points to a document 12 in the record that he filed with the Commission that simply restates, verbatim, the 13 assertion he makes in his brief. We will not search the record for evidence to support 14 Sedillo’s claim and decline to review such an undeveloped argument. See In re Estate 15 of Heeter, 1992-NMCA-032, ¶ 15; Headley, 2005-NMCA-045, ¶ 15; see also Santa 16 Fe Expl. Co. v. Oil Conservation Comm’n, 1992-NMSC-044, ¶ 11, 114 N.M. 103, 835 17 P.2d 819 (cautioning counsel to review and follow appellate rules where brief 18 contained “numerous factual statements without a single citation to the record below,” 19 save for record citation pointing to quoted material from a filing made below).
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1 Penalty 2 {14} Finally, we turn to Sedillo’s argument regarding the penalty imposed against 3 him. Regulation 15.2.6.9 NMAC, which sets forth the classification level of various 4 substances as well as penalty recommendations for violations of the rules governing 5 those substances, has undergone various amendments. The most important for our 6 purposes here are the amendments of April 2012 and July 2012. The April 2012 7 version of 15.2.6.9 NMAC, contained a recommended penalty for a Class 1 drug 8 violation of a one to five years’ suspension, at least a $5,000 fine, and loss of purse. 9 15.2.6.9(B)(1) NMAC (4/30/2012). In July 2012 the Commission reduced the 10 recommended penalty for a trainer’s first offense to a one- to three-year suspension 11 and a fine of $10,000 or loss of purse. 15.2.6.9(C)(1)(a) NMAC (7/31/2012). 12 {15} Sedillo insists that NMSA 1978, Section 12-2A-16(C) (1997) of the Uniform 13 Statute and Rule Construction Act, prohibits the Commission from imposing the April 14 2012 recommended penalty. Sedillo relies on Section 12-2A-16(C), which provides, 15 “[i]f a criminal penalty for a violation of a statute or rule is reduced by an amendment, 16 the penalty, if not already imposed, must be imposed under the statute or rule as 17 amended.” (Emphasis added.) He argues that application of the April 2012 18 recommended penalty is improper because the penalty itself was imposed after the 19 lower penalty recommendation was adopted. Sedillo’s reliance on Section 12-2A-
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1 16(C) is misplaced, as the violation before the Commission was not a criminal matter. 2 Instead, Section 12-2A-16(A) controls. That section states, “[a]n amendment or repeal 3 of a civil statute or rule does not affect a pending action or proceeding or a right 4 accrued before the amendment or repeal takes effect.” (Emphasis added.) Section 12- 5 2A-16(A) reflects our Constitution’s protection against interference with evidentiary 6 and procedural matters in cases that are in the process or course of litigation but that 7 have not been concluded or determined by a final judgment. N.M. Const. art. IV, § 34 8 (“No act of the [L]egislature shall affect the right or remedy of either party, or change 9 the rules of evidence or procedure, in any pending case.”). The races in question 10 occurred in May 2012, and the board of stewards’ decision was issued in September 11 2012. To apply different regulations on the date of their issuance in July 2012 to a 12 matter that had been pending for months would be contrary to both Section 12-2A- 13 16(A) and our Constitution. 14 {16} Finally, Sedillo claims that the Commission’s imposition of consecutive, rather 15 than concurrent, sanctions is contrary to its own rules and regulations and “finds no 16 authority in the statutory makeup of the agency.” Notwithstanding that the penalties 17 assessed against Sedillo are civil in nature, he erroneously relies on criminal law 18 concepts regarding the rehabilitative qualities of sentences in making his argument. 19 The Act authorizes the Commission to “suspend, revoke or deny renewal of a
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1 license[,]” as well as impose civil penalties for a licensee’s violation of the Act or its 2 accompanying rules. Section 60-1A-5(C), (D); 15.2.1.9(C)(20) NMAC. The rules 3 authorize the Commission to assess an administrative penalty for violations of the Act 4 and its accompanying rules; and, each occurrence that amounts to a violation “may be 5 considered a separate violation.” 15.2.1.9(C)(20)(b) NMAC. The penalties assessed 6 against Sedillo are in accordance with the penalty recommendations for a violation 7 involving a Class 1 drug.4 15.2.6.9(B)(1) NMAC (4/30/2012). We therefore conclude 8 that the penalty assessed against Sedillo in this case was not outside the Commission’s 9 authority under NMAC 15.2.1.9, was not arbitrary or capricious, and was not contrary 10 to the law. 11 CONCLUSION 12 {17} We affirm. 13 {18} IT IS SO ORDERED.
14 15 JULIE J. VARGAS, Judge
16 WE CONCUR:
17 18 MICHAEL E. VIGIL, Judge
4 18 Nowhere in the record or briefing before us does Sedillo assert Dermorphin 19 does not qualify as a Class 1 drug.
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2 HENRY M. BOHNHOFF, Judge