Posted by: Patricia Salkin | May 29, 2012

New Mexico Appeals Court Holds that First Cousin of Applicant for Application for a Zoning Amendment Must Recuse Herself

Applicants applied to the Valencia County Board of County Commissioners to change a zoning status on adjacent properties from Agricultural Preservation to Rural Residential to allow for a planned residential subdivision. The Board approved the change in a 3-2 vote. The Commissioner, a first cousin of one of the applicants, voted in favor of the change. When asked if she should have recused herself, she stated that she was not “that close” with the applicant and that the Board’s attorney said she did not need to recuse herself. Los Chavez Association and other individuals appealed the decision to district court on the grounds that the decision was “arbitrary and capricious” as well as on a denial of fundamental due process rights because the Commissioner did not recuse herself. The district court reversed citing the failure to recuse as a “due process violation.” The Appellants filed an appeal.

The Court affirmed the decision of the district court and remanded to the Board. The Valencia County Ordinance 2004-05 § 154.061 (B)(3)(a) (2004) provides that the Board is the “ultimate decision-making body for zone changes.” Those that sit on boards deciding applications for changes in zoning act in a “quasi-judicial capacity.” The Court held that “presiding board members must act like a judicial body bound by the same ethical standards comparable to those that govern a court in performing the same function.” Citing High Ridge Hinkle Joint Venture, 119 N.M. at 40, 888 P.2d at 486.

The Appellants argue that the Zoning Ordinance for Valencia is silent on matters of recusal and furthermore, the New Mexico Code of Judicial Conduct “requires recusal only when a party to a proceeding is within the third degree of relationship to the judge.” The Appellants point out that first-degree cousins are considered fourth-degree relatives. However, the Court found that the Constitution of New Mexico demands a higher standard.

“No justice, judge, or magistrate of any court, shall, except by consent of all parties, sit in any cause in which either of the parties are related to him by affinity or consanguinity within the degree of first cousin, or in which he was counsel, or in the trial of which he presided in any inferior court, or in which he has interest.” N.M. Const. art. VI § 18

The Court held that the Supreme Court of New Mexico “has determined it to be imperative that when governmental agencies adjudicate the legal rights of individuals they use the procedures which have traditionally been associated with the judicial process.” Citing Reid v. N.M. Bd. of Exam’rs of Optometry, 92 N.M. 414, 416, 589 P.2s 198, 200 (1979). The New Mexico Constitution’s due process clause mirrors the federal one. Due Process requires a hearing to be free from any form of bias. A relationship between a judge and an applicant leads to a presumption of bias. “By incorporating Article VI, Section 18 into [the] Constitution, New Mexicans have decided that absent consent, a judge cannot hear a case in which a first cousin to the judge is a party, and this is because there is a presumption of bias.” Furthermore, the Court felt that this due process safeguard would not materially inhibit the execution of governmental business in Valencia, and thus, the Commissioner should have recused herself.

Loc Chavez Community Association v. Valencia County, 2012 WL 1708460 (N.M.App.3/20/2012)

The opinion can be accessed at: http://coa.nmcourts.gov/documents/opinions/Los%20Chavez%20FO.pdf


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