August 10, 2020- Angela Medrow v. New Mexico Public Education Department, No. A-1-CA-36959

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
ANGELA MEDROW, individually, and	2
on behalf of others similarly situated,	3
Plaintiff-Appellant,	4
v. 	No. A-1-CA-36959	5
NEW MEXICO PUBLIC EDUCATION	6
DEPARTMENT,	7
Defendant-Appellee.	8
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY	9
Francis J. Mathew, District Judge	10
Warren F. Frost, P.C.	11
Warren F. Frost	12
Logan, NM	13
for Appellant	14
SaucedoChavez, P.C.	15
Christopher T. Saucedo	16
Daniel C. Apodaca	17
Albuquerque, NM	18
Montgomery & Andrews, P.A.	19
Jeffrey J. Wechsler	20
Randi N. Valverde	21
Santa Fe, NM	22
for Appellee	23
Court of Appeals of New Mexico
Filed 8/10/2020 11:56 AM

2
MEMORANDUM OPINION	1
IVES, Judge.	2
{1} 	Angela Medrow appeals the district court order granting defendant Public	3
Education Department’s (PED) motion for summary judgment. We are called on to	4
decide whether the PED regulation that makes attendance, measured in part by use	5
of accrued leave, a factor in Medrow’s annual teacher evaluation violated Article II,	6
Section 20 of the New Mexico Constitution, which prohibits taking or damaging	7
private property for public use without just compensation. Because Medrow has not	8
demonstrated that the application of the PED regulation to her has, at this juncture,	9
effected a taking of property without just compensation, we affirm.	10
BACKGROUND	11
{2} 	Medrow, a teacher with the Logan Municipal Schools, filed a complaint	12
against PED in 2017 to challenge the statewide teacher evaluation system that PED	13
established by regulation in 2012.1 The system provides guidance to school districts	14
for annually measuring individual teachers’ effectiveness. See generally 6.69.8	15
NMAC. One of its requirements is that the district’s evaluation of its teachers include	16
an attendance component, see 6.69.8.8(H) NMAC; this facet of the evaluation was	17
the object of Medrow’s complaint.	18
1The 2012 regulation was repealed and replaced on August 15, 2017, but the
attendance provision Medrow challenged remained intact. See 6.69.8.8(H) NMAC.

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{3} 	Medrow sought injunctive and declaratory relief. Regarding the latter, she	1
requested that the “use of contractually earned leave as a basis for subtracting points	2
from a teacher’s annual evaluation” be deemed a violation of Article II, Section 20—	3
the takings clause—of the New Mexico Constitution. Medrow did not present any	4
other legal theories in support of her challenge to the evaluation system.	5
{4} 	According to Medrow, for the 2016-2017 school year, the one in which she	6
filed her complaint, 20 of 200 possible points of her evaluation were based on	7
attendance.2 One point out of those twenty was deducted for each day of leave she	8
took, but beginning only after she missed six days. 3 Medrow’s leave allowances	9
were calculated in accordance with the school district’s policy and were provided	10
for through her employment contract. In the 2016-2017 school year, she used eight	11
and one-half days of leave. When combined with points corresponding to the other	12
effectiveness measures, Medrow would be rated exemplary if she scored 173 or	13
higher; highly effective if she scored between 146 and 172; effective if she scored	14
between 119 and 145; minimally effective if she scored between 92 and 118; and	15
2The PED regulation states that five percent of a teacher’s evaluation must be
based on attendance and five percent on student and parent perception surveys. See
6.69.8.8(H) NMAC. Medrow explains that, in her case, since her students were too
young to complete surveys, the survey component was not included, and instead ten
percent was based on attendance.
3Not all types of leave count toward the total. Excluded from the attendance
calculation is leave taken pursuant to the Family Medical Leave Act, as well as leave
for 	bereavement, 	jury 	duty, military 	service, 	religious 	purposes, 	professional
development, and coaching and other school-related activities.

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ineffective if she scored below 92. Were she rated minimally effective or ineffective,	1
Medrow claims, she would be subject to placement on a growth plan to correct her	2
unsatisfactory work performance; she further claims that if her work performance	3
was not thereafter corrected, she could be terminated. In each of the school years	4
before 2016-2017, Medrow was rated ineffective, minimally effective, and effective,	5
respectively. However, the district court determined that Medrow had not shown that	6
she would suffer adverse consequences as a result of taking leave in the 2016-2017	7
school year or that the PED regulation prevented her from taking leave.	8
{5} 	PED moved to dismiss Medrow’s complaint, arguing that the facts as alleged	9
were legally insufficient to effect a taking. The motion was later converted to one	10
for summary judgment. The district court denied her request for an injunction and	11
granted summary judgment. Medrow does not appeal the injunction denial; she	12
challenges only the summary judgment. The district court resolved that matter by	13
concluding that (1) a teacher’s contractually accrued leave constitutes a property	14
interest; but (2) PED’s actions did not constitute a taking under the takings clause of	15
the New Mexico Constitution.	16
DISCUSSION	17
{6} 	We must begin by emphasizing the scope of this case. Although Medrow	18
framed her complaint as a class action seeking relief on behalf of all teachers in New	19
Mexico, the district court did not certify her case as a class action. Because the	20

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district court adjudicated only Medrow’s challenge to her own evaluation, our	1
analysis is limited to her claim. We do not address the claims of any other teachers.	2
{7} 	“We review an order granting summary judgment de novo.” Santa Fe Pac.	3
Tr., Inc. v. City of Albuquerque, 2014-NMCA-093, ¶ 16, 335 P.3d 232. “Summary	4
judgment is appropriate where there are no genuine issues of material fact and the	5
movant is entitled to judgment as a matter of law.” Id. (internal quotation marks and	6
citation omitted). Here, the material facts are not in dispute, so the salient question	7
is a legal one: whether the facts Medrow alleged gave rise to an unconstitutional	8
taking. See id.	9
{8} 	An unconstitutional taking under the New Mexico Constitution arises from a	10
violation of Article II, Section 20, which states: “Private property shall not be taken	11
or damaged for public use without just compensation.” Aside from the “or damaged”	12
phrase in our takings clause, this language approximates that of the federal takings	13
clause. See New Mexicans for Free Enter. v. City of Santa Fe, 2006-NMCA-007,	14
¶ 52, 138 N.M. 785, 126 P.3d 1149; compare U.S. Const. amend. V (“[N]or shall	15
private property be taken for public use, without just compensation.”), with N.M.	16
Const. art. II, § 20. Despite that difference, “our jurisprudence in this area does not	17
materially vary from federal jurisprudence.” New Mexicans, 2006-NMCA-007,	18
¶ 52; see generally Maureen E. Brady, The Damagings Clauses, 104 Va. L. Rev.	19
341, 395 (2018) (observing that “the damagings clauses [in state constitutions] are	20

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construed narrowly”; that “[o]nly physical disturbances of certain valuable property	1
rights 	can 	create 	constitutional 	liabilities”; 	and 	that, 	given 	the 	evolution 	of	2
interpretation in federal takings law, “the clauses typically mandate compensation in	3
circumstances 	where 	the 	federal 	Takings 	Clause 	would 	already 	apply”).	4
Accordingly, “[i]n evaluating takings claims under the New Mexico Constitution,	5
we turn to both federal and state cases for guidance[.]” Moongate Water Co., Inc. v.	6
City of Las Cruces, 2013-NMSC-018, ¶ 17, 302 P.3d 405 (alterations, internal	7
quotation marks, and citation omitted).	8
{9} 	Since here there has been no physical taking of private property, we	9
understand Medrow to argue that she suffered a regulatory taking. See, e.g., Yee v.	10
City of Escondido, Cal., 503 U.S. 519, 522 (1992) (identifying the two general	11
classes 	of 	takings 	cases: 	one 	where 	“the 	government 	authorizes 	a 	physical	12
occupation 	of 	property 	(or 	actually 	takes 	title)”; 	and 	the 	other 	where 	“the	13
government merely regulates the use of property”).	14
The general rule is that a regulation which imposes a reasonable	15
restriction on the use of private property will not constitute a ‘taking’	16
of that property if the regulation is (1) reasonably related to a proper	17
purpose and (2) does not unreasonably deprive the property owner of	18
all, or substantially all, of the beneficial use of his or her property.	19
Moongate, 2013-NMSC-018, ¶ 18 (alteration omitted) (quoting Temple Baptist	20
Church, Inc. v. City of Albuquerque, 1982-NMSC-055, ¶ 27, 98 N.M. 138, 646 P.2d	21
565).	22

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{10} 	Medrow and PED disagree about whether the facts of this case meet several	1
of the New Mexico takings clause’s requisites. Namely, PED challenges whether	2
Medrow’s property has been “taken”; whether it has been “damaged”; and,	3
presuming one of those conditions is met, whether it was put to “public use.”	4
{11} 	On the other hand, the parties appear to agree that Medrow’s contractually	5
accrued leave falls under the umbrella of “property” as that term is used in the	6
takings clause. As we see it, it is Medrow’s right to use that leave that represents the	7
property at issue. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984)	8
(observing that the term “property” in the federal takings clause has been construed	9
“to denote the group of rights inhering in the citizen’s relation to the physical thing,	10
as the right to possess, use and dispose of it” (internal quotation marks and citation	11
omitted)). Thus, for purposes of our analysis, we refer to Medrow’s right to use her	12
contractually accrued leave when speaking of the property at issue, and we	13
furthermore assume without deciding that that right is “property” in the takings	14
sense. See, e.g., Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1075 (11th Cir.	15
1996) (recognizing that “while certain property interests may not be taken without	16
due process, they may be taken without paying just compensation”).	17
{12} 	But even giving Medrow the benefit of any doubt as to whether her right to	18
use her contractually accrued leave qualifies as property for purposes of our takings	19
clause analysis, we are not persuaded that, under the facts of this case, there was a	20

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taking of that right. Primarily, this is because Medrow has failed to allege that any	1
specific property was taken or damaged; in other words, she failed to establish that	2
the teacher evaluation system extinguished or restricted her right to use her accrued	3
leave.	4
{13} 	Medrow’s first argument to the contrary is that PED benefitted from improved	5
teacher attendance by “depriving each and every New Mexico teacher of their	6
contractually earned sick leave without compensation.” This exaggerates the scope	7
of the issue before us, which is only whether the application of this regulation to	8
Medrow violates the takings clause, not whether its application to any other teacher	9
does so. Medrow also exaggerates the regulation’s reach: she put forth no evidence	10
that the evaluation system directly dispossessed her of her right to use her leave. And	11
she does not challenge the district court’s finding that she used eight and one-half	12
leave days in the 2016-2017 school year.	13
{14} 	Medrow’s second argument is that the system works an indirect dispossession	14
by disincentivizing and punishing the taking of leave, and that the system deprives	15
her of beneficial use of that leave by threatening her teaching position should she	16
take that leave. Whatever merit this theory might have in the abstract, it is not viable	17
on the record before us. Medrow makes no claim that the evaluation system	18
prevented or deterred her from taking more leave, and there is no evidence that any	19
employment action was taken against her as a consequence of her evaluation results.	20

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Moreover, the causal connection between leave taking and job loss that Medrow	1
asks us to draw entails speculation. Even if Medrow had lost the maximum twenty	2
points on her evaluation for her absences, she could still have received a rating of	3
exemplary (a score of at least 173 points out of 200) or another rating high enough	4
to insulate her from all negative evaluation-related consequences. And even a rating	5
that exposed her to the possibility of such consequences would not automatically	6
produce them because, as the district court found, each school district retains the	7
discretion to determine whether to discipline a teacher for excessive absences. Given	8
all this, we see no avenue for recognizing that the PED regulation, as it applied to	9
Medrow, effected a taking.	10
{15} 	The only case Medrow cites as justifying a different conclusion is Allen v.	11
McClellan, 1965-NMSC-094, 75 N.M. 400, 405 P.2d 405. There, our Supreme	12
Court held that the “consequential damage to the owner of private land” was a taking	13
under Article II, Section 20, “even though there was no actual taking of any part of	14
the land itself.” Allen, 1965-NMSC-094, ¶ 10. The damage referred to occurred after	15
the New Mexico Game Commission ordered the creation of a game refuge or	16
management area and then forbade hunting within the area. See id. ¶ 2. The damage	17
was suffered by the owners of private land within the refuge; those owners, the	18
plaintiffs, were arrested for violating the prohibition by hunting on their land. See	19
id. The court reasoned that the right to pursue game on one’s land was a fundamental	20

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attribute of land ownership, that the commission’s orders had stripped the plaintiffs	1
of that right, and that such a deprivation amounted to an unconstitutional taking. See	2
id. ¶¶ 8-10.	3
{16} 	Medrow 	argues 	that 	her 	situation 	is 	indistinguishable 	from 	the 	Allen	4
landowners’. 	Referring 	to 	one 	landowner, 	Medrow 	says 	that 	“[h]e 	still 	had	5
ownership of his property[,] . . . but if he hunted on it, he was subject to being	6
criminally charged[.]” She analogizes, saying that “teachers retain their leave on the	7
books, but if they use that leave they are subjecting themselves to negative	8
employment consequences including possibly termination.”	9
{17} 	But this analogy is flawed. The ownership interest at stake in Allen was not	10
the plaintiff’s land, but rather his right to hunt on it. The commission prohibited him	11
from exercising that right. For Medrow’s situation to correspond to the Allen	12
landowners’, the PED regulation would have to have prohibited Medrow from	13
exercising her right to use her accrued leave—and this, as we have said, it did not	14
do.	15
{18} 	We see this case as more akin to New Mexicans than Allen. In New Mexicans,	16
the plaintiffs, a group that included business owners, challenged a municipal	17
ordinance setting the minimum wage higher than under federal or state law. 2006-	18
NMCA-007, ¶ 1. They argued in part that the ordinance would “economically	19
destroy[]” their ventures, thereby effecting a taking. Id. ¶ 52. This Court applied the	20

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Temple 	Baptist 	rule, 	reiterated 	in 	Moongate, 	governing 	when 	“a 	reasonable	1
restriction on the use of private property will not constitute a ‘taking’ of that	2
property[.]” New Mexicans, 2006-NMCA-007, ¶ 53 (internal quotation marks and	3
citation omitted). Before ultimately concluding that the wage regulation did not	4
violate either the federal or state takings clause, we observed that the regulation did	5
not appear to fit within the Temple Baptist rule. See New Mexicans, 2006-NMCA-	6
007, ¶ 53. Specifically, there was no restriction on the use of private property because	7
the wage regulation did not prevent the business owners from using their businesses	8
as they wished. Id. Likewise here—and unlike in Allen—the regulation at issue does	9
not appear to have restricted Medrow’s use of private property in a manner that rises	10
to the level of a taking.	11
{19} 	Consequently, we hold that the PED regulation as it applied to Medrow did	12
not effect a taking and that the district court therefore did not err in granting summary	13
judgment against her. We stress that our holding is narrow; it is limited to the specific	14
legal theory and factual record before us. We offer no opinion on whether application	15
of the PED regulation (in its prior or current form or some revised one) to Medrow	16
or any other teacher would effect a taking under different circumstances. See Bd. of	17
Cty. Comm’rs of Lincoln Cty. v. Harris, 1961-NMSC-165, ¶ 12, 69 N.M. 315, 366	18
P.2d 710 (recognizing that “while property may be regulated to a certain extent, if	19
regulation goes too far it will be recognized as a taking”; that this is “a question of	20

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degree”; and that “a strong public desire to improve the public condition is not	1
enough to warrant achieving the desire by a shorter cut than the constitutional way	2
of paying for the change” (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 415-16	3
(1922))). Nor do we opine about whether the PED regulation is vulnerable to any	4
other legal challenge.	5
CONCLUSION	6
{20} 	We affirm.	7
{21} 	IT IS SO ORDERED.	8
_________________________________	9
ZACHARY A. IVES, Judge	10
WE CONCUR:	11
_________________________________	12
J. MILES HANISEE, Chief Judge	13
_________________________________	14
MEGAN P. DUFFY, Judge	15