September 27, 2011 – Deborah Bransford-Wakefield v. State of New Mexico Taxation and Revenue Department Motor Vehicle Division, No. 31,183

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _______________
Filing Date: September 27, 2011
NO. 31,183
DEBORAH BRANSFORD-WAKEFIELD,
Petitioner-Appellant,
v.
STATE OF NEW MEXICO TAXATION
AND REVENUE DEPARTMENT
MOTOR VEHICLE DIVISION,
Respondent-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Raymond Z. Ortiz, District Judge
David Henderson
Santa Fe, NM
for Appellant
Gary K. King, Attorney General
Julia Belles, Special Assistant Attorney General
Santa Fe, NM
for Appellee

OPINION
VANZI, Judge.
{1} 	In this case, we must decide whether to excuse the late filing of a petition for
a writ of certiorari. Because we conclude that the attorney’s unspecified illness in this
case is not an unusual circumstance that would warrant waiving the timeliness
requirement that is a mandatory precondition to the exercise of this Court’s
jurisdiction, we deny the petition as untimely.
BACKGROUND
{2} 	Deborah Bransford-Wakefield was arrested by an officer from the Tesuque
Tribal Police Department and charged with driving while intoxicated. As a result, the
Motor Vehicle Division of the Taxation and Revenue Department (the MVD) began
proceedings to revoke her driver’s license pursuant to the Implied Consent Act,
NMSA 1978, Sections 66-8-105 to -112 (1978, as amended through 2007). Prior to
her license revocation hearing, Bransford-Wakefield requested a discovery order from
the MVD. The MVD issued the order, and the police department produced documents
to Bransford-Wakefield seventeen days before the hearing. The documents indicated
that the police had taken a video recording of the encounter with Bransford-Wakefield
after the stop, including her field sobriety tests, but Bransford-Wakefield did not learn

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of the video until the day before the hearing, apparently because she did not review
the documents until that time.
{3} 	At the hearing, the arresting officer testified that he stopped Bransford-
Wakefield for failing to come to a complete stop at a stop sign and that when he
stopped her, he noticed a strong odor of alcohol. 	Bransford-Wakefield performed
field sobriety tests, but she failed to perform them correctly, and the officer concluded
that he had probable cause to arrest her for driving while intoxicated. The officer then
administered a breath alcohol test that 	resulted in a reading of .08. 	Based on this
evidence, the hearing officer concluded that a preponderance of the evidence
supported a revocation of Bransford-Wakefield’s license pursuant to Section 66-8-
112.
{4} 	The hearing officer considered Bransford-Wakefield’s argument that she was
denied due process by the police department’s failure to provide her with the
videotape in discovery. 	The hearing officer noted that generally there is no
constitutional right to discovery in an administrative hearing but that a due process
right may be implicated if a party can demonstrate some particularized prejudice
resulting from the denial of discovery. The hearing officer expressed concern that
Bransford-Wakefield had not exercised due diligence in attempting to obtain the video
but stated that even assuming that she had done so, she had not demonstrated that she
was prejudiced by not receiving it. The hearing officer noted that even if the video

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showed that Bransford-Wakefield’s performance on the field sobriety tests was better
than the way in which it was described by the officer, there was nevertheless
substantial evidence to support revocation of her license that could not by refuted by
the video, such as evidence that she denied drinking, smelled of alcohol, had
bloodshot eyes, and the result of her breath alcohol test was .08.
{5} 	The hearing officer also addressed Bransford-Wakefield’s argument that the
evidence showed that the police officer had no reasonable suspicion to stop her
because she testified that she did not drive through the stop sign. The hearing officer
found that, based on the officer’s testimony, there was reasonable suspicion for the
stop.
{6} 	Bransford-Wakefield appealed to the district court. 	She raised two issues:
(1) whether the police officer had reasonable suspicion to initiate the traffic stop, and
(2) whether the police officer’s testimony concerning the field sobriety tests was
properly admitted even though the video would have been the best evidence of what
occurred during the tests. Bransford-Wakefield then filed a motion to supplement the
district court’s appellate record to take judicial notice of the criminal case that was
brought against her as a result of the incident. In the motion, Bransford-Wakefield
argued that the finding by the judge in the criminal case—that the officer’s testimony
regarding the initial reason for the stop was not credible—should reach back to
preclude the hearing officer’s earlier conclusion that there was reasonable suspicion

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for the stop, and 	without reasonable suspicion, the evidence should have been
excluded from the license revocation hearing. She also argued that the evidence in the
criminal case demonstrated that she was deprived of due process by the failure of the
police department to provide her with the video because it was the inconsistencies
between the officer’s testimony and the video that convinced the judge in the criminal
case that the officer’s testimony was not credible.
{7} 	The district court affirmed the decision of the hearing officer. The district court
concluded that pursuant to Glynn v. State, Taxation and Revenue Department, 2011-
NMCA-031, ¶ 18, 149 N.M. 518, 252 P.3d 742, cert. denied, 2011-NMCERT-003,
___ N.M. ___, ___ P.3d ___ (No. 32,862, Mar. 8, 2011), it did not matter whether the
officer had reasonable suspicion or probable cause for the stop because the
exclusionary rule does not apply in an administrative hearing. It also stated that it
could neither take judicial notice of the criminal proceeding nor supplement the record
on appeal, as it was permitted to review only the evidence presented at the hearing.
{8} 	The district court’s order was filed on March 9, 2011. Pursuant to Rule 12-
505(C) NMRA, Bransford-Wakefield was required to file her petition for writ of
certiorari with this Court within thirty days after the district court’s order, such that
the due date was April 8, 2011. Bransford-Wakefield did not file her petition until
April 11, 2011. The next day, Bransford-Wakefield filed a motion with this Court to
accept the petition as timely filed. This Court sought a response to the motion from

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the MVD, and Bransford-Wakefield filed a reply, which we have not considered, as
a reply is not contemplated by the Rules of Appellate Procedure. See Rule 12-309(E)
NMRA (providing only that a motion and a response to a motion may be filed as a
matter of course).
DISCUSSION
An Attorney’s Illness Is Not an Unusual Circumstance That Will Excuse the
Untimely Filing of a Petition For Writ of Certiorari
{9} 	Our Supreme Court has held that the time requirement for filing a petition for
writ of certiorari is a mandatory precondition to the exercise of an appellate court’s
jurisdiction to review the matter. Gulf Oil Corp. v. Rota-Cone Field Operating Co.,
85 N.M. 636, 636, 515 P.2d 640, 640 (1973) (per curiam) (holding that, as with the
requirement for a notice of appeal, the timely filing of a petition for a writ of certiorari
is a mandatory precondition to the exercise of an appellate court’s jurisdiction that will
not be excused absent unusual circumstances). When a petition is not filed in this
Court within thirty days of the district court’s final order, this Court will not excuse
the untimely filing absent a showing of unusual circumstances that would justify the
untimeliness. Id. Unusual circumstances are also required to warrant an extension of
time to file a petition when the extension is sought after the filing deadline.
Cassidy-Baca v. Bd. of Cnty. Comm’rs of Cnty. of Sandoval, 2004-NMCA-108, ¶ 2,
136 N.M. 307, 98 P.3d 316; Hyden v. N.M. Human Servs. Dep’t, 2000-NMCA-002,

6
¶ 15, 128 N.M. 423, 993 P.2d 740. 	Our Supreme Court has defined unusual
circumstances as circumstances that are both truly unusual and that are “beyond the
control of the parties—such as error on the part of the court.” Trujillo v. Serrano, 117
N.M. 273, 278, 871 P.2d 369, 374 (1994) (holding that there would be unusual
circumstances to excuse the late filing of a notice of appeal to the district court if the
untimely filing was caused by the magistrate court and remanding for a finding of fact
on this issue).
{10} 	In considering whether to exercise this Court’s discretion to waive the
mandatory timeliness requirement for a late petition, this Court is mindful of the fact
that, unlike cases in which a party has an appeal as of right, review in this Court of the
district court’s order on appeal from an administrative agency is discretionary. Paule
v. Santa Fe Cnty. Bd. of Cnty. Comm’rs, 2005-NMSC-021, ¶ 14, 138 N.M. 82, 117
P.3d 240 (holding that the decision whether to grant a petition for a writ of certiorari
to review the district court’s decision in an administrative appeal rests in the sound
discretion of the Court of Appeals). 	The absolute right to one appeal set forth in
Article VI, Section 2 of the New Mexico Constitution does not apply to appeals to this
Court from the district court’s decision on appeal from an administrative agency
ruling. See VanderVossen v. City of Espanola, 2001-NMCA-016, ¶¶ 7-16, 130 N.M.
287, 24 P.3d 319 (explaining that the absolute right to one appeal contained in Article
VI, Section 2 of the New Mexico Constitution does not apply to review by the Court

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of Appeals of a district court’s decision on appeal from an administrative agency’s
zoning decision). Because the parties have already had an appeal as of right, we need
not consider the policy of a party’s absolute right to one appeal in determining
whether unusual circumstances warrant accepting an untimely petition for writ of
certiorari. Cf. Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t, 2010-NMSC-
034, ¶¶ 14, 19, 148 N.M. 692, 242 P.3d 259 (applying the policy established in Article
VI, Section 2 to an appeal as of right from a workers’ compensation decision to the
Court of Appeals, even though a workers’ compensation proceeding is a special
statutory proceeding that does not originate in the district court).
{11} 	Bransford-Wakefield’s late motion for an extension asserted that her counsel
intended to prepare the petition on the last possible day for filing, Friday, April 8, but
became ill on that date and did not realize until Monday, April 11, that the deadline
had passed. The motion does not specify what sort of illness counsel had or provide
any other explanation for why this illness would constitute an unusual circumstance
warranting the late filing. Although an illness is certainly beyond the control of the
parties, it is not the kind of court-created error that is paradigmatic of the sort of
unusual circumstance that will generally excuse a late filing. See Trujillo, 117 N.M.
at 278, 871 P.2d at 374. Furthermore, illness—like many other unanticipated events
that might get in the way of drafting and filing a legal document when one waits until

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the last day to do so—is so common that we cannot conclude that it constitutes an
“unusual” circumstance that would warrant excusing the late filing of the petition.
{12} 	Bransford-Wakefield points out that, excluding the intervening weekend, the
petition was filed only one day late. 	Our Supreme Court has held that unusual
circumstances may warrant excusing the late filing of a document that serves as a
mandatory precondition to the exercise of this Court’s jurisdiction when the document
is only a little bit late and there are other unusual circumstances that were not caused
by the court system but were not within the control of the party seeking review. See
Chavez v. U-Haul Co., 1997-NMSC-051, ¶¶ 19-22, 124 N.M. 165, 947 P.2d 122
(hearing an appeal where the notice was filed fifty-eight minutes late, the appellant
filed the notice pro se, his trial counsel had been in the process of arranging for
substitute counsel, and after trial it was not clear which attorney would be responsible
for prosecuting the appeal); see also Schultz, 2010-NMSC-034, ¶ 21 (holding that
unusual circumstances required excusing the mandatory timeliness requirement where
the notice of appeal was received two days late because the appellant had mailed the
notice four days prior to the due date and the fact that the United States Postal Service
took more than four days to deliver the document from Albuquerque to Santa Fe was
an unusual circumstance outside of the appellant’s control). 	But see San Juan
1990-A., L.P. v. El Paso Prod. Co., 2002-NMCA-041, ¶ 24, 132 N.M. 73, 43 P.3d
1083 (holding that unusual circumstances did not excuse the filing of a notice of

9
appeal one day late when the late filing was due to misinformation provided by the
courier service used by the appellant’s attorney). However, our Supreme Court cases
are distinguishable since they relied on the policy favoring the right to one appeal—a
policy that is not at issue here, as the parties have already been afforded an appeal to
the district court. See Chavez, 1997-NMSC-051, ¶ 20; see also Schultz, 2010-NMSC-
034, ¶ 19. 	Because our review of this matter is discretionary, and because an
attorney’s illness does not constitute an unusual circumstance that would excuse the
late filing of a petition for writ of certiorari, we deny the petition as untimely and
decline to review it on its merits.
Bransford-Wakefield Has Not Demonstrated That She Is Entitled to an Appeal
as of Right as to Any of the Issues Raised on Appeal
{13} 	Our decision to deny the petition as untimely relies heavily on the fact that the
parties have already been afforded an appeal as of right in the district court and on the
fact that review in this Court of a petition for writ of certiorari is discretionary.
However, as we noted in Maso v. State Taxation and Revenue Department, 2004-
NMCA-025, ¶ 17, 135 N.M. 152, 85 P.3d 276, aff’d, 2004-NMSC-028, 136 N.M. 161,
96 P.3d 286, and Glynn, 2011-NMCA-031, ¶¶ 10-11, there are some instances in
which a district court, on appeal from an administrative decision, is asked to exercise
both its appellate jurisdiction to review the decisions of the administrative entity and
its original jurisdiction to determine any matters between the parties that could not

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have been raised in the administrative proceeding. In such circumstances, although
further review of the administrative decision is discretionary with this Court, a party
has an appeal as of right of any matter properly before the district court as part of its
original jurisdiction. To the degree that a party has an appeal as of right to this Court,
our assessment of whether to reach the merits of that appeal or to dismiss it as
untimely is distinct from our assessment of whether to reach the merits of the issues
raised pursuant to a petition for discretionary review.
{14} 	Although we stated in Maso and Glynn that there is uncertainty about how a
party should proceed if some portion of the appeal is as of right and some portion of
the appeal is discretionary, see Maso, 2004-NMCA-025, ¶ 17 n.1; Glynn, 2011-
NMCA-031, ¶ 11, our rules make clear that when an appeal from the district court is
as of right, a party must file a timely notice of appeal in the district court, and when
an appeal is discretionary, the party must file a petition for writ of certiorari in this
Court. See Rule 12-202 NMRA (establishing procedures for appeals as of right from
the district court); Rule 12-505 (establishing procedures for review pursuant to a writ
of certiorari). 	Both the time and place of filing requirements are mandatory
preconditions to the exercise of this Court’s jurisdiction. See Govich v. N. Am. Sys.,
Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991). Therefore, when a party seeks to
appeal some portion of a district court’s decision as of right and seeks discretionary
review of some other portion, the party should file a notice of appeal as to the issues

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to be reviewed as of right and a petition as to those issues that are reviewed in our
discretion. If there is any uncertainty about whether certain issues are appealed as of
right, a party should err on the side of filing both a timely notice of appeal in the
district court and a petition in this Court in order to ensure there is no waiver of any
right to appeal and in order to invoke this Court’s jurisdiction to exercise its discretion
to review those issues that are not appealed as of right.
{15} 	Here, however, Bransford-Wakefield does not assert that any of her issues are
appealed as of right. Therefore, we need not determine whether Bransford-Wakefield
timely filed a notice of appeal (or some other non-conforming document that would
serve as a notice of appeal) in the district court, and if she did not, whether unusual
circumstances excuse her failure to meet the mandatory time and place of filing
requirements set by Rules 12-201, -202 NMRA governing notices of appeal.
CONCLUSION
{16} 	Bransford-Wakefield was required to file a timely petition for writ of certiorari
in order to seek discretionary appellate review in this Court. Because her petition was
filed one day late and because her attorney’s unanticipated illness was not an unusual
circumstance that would justify the untimely filing, we deny the petition.
{17} 	IT IS SO ORDERED.
_______________________________

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LINDA M. VANZI, Judge
WE CONCUR:
_________________________________
CELIA FOY CASTILLO, Chief Judge
_________________________________
CYNTHIA A. FRY, Judge