Section 7-38-89 - Validity of certain regulations; judicial review. - New Mexico Statutes

7-38-89. Validity of certain regulations; judicial review.

A.     Any person who is or may be adversely affected by the adoption, amendment or repeal of a regulation promulgated by an authorized governmental agency other than the department under Section 7-38-87 NMSA 1978 may appeal that action to the court of appeals.  All appeals shall be on the record made at the hearing and must be perfected by filing a notice of appeal in the court of appeals within thirty days after the adoption, amendment or repeal of a regulation is filed pursuant to law.   

B.     The notice of appeal required to be filed under this section shall include a concise statement of the facts upon which jurisdiction is based, the grounds upon which relief is sought and the relief requested.  The notice shall also include a statement that arrangements have been made with the governmental agency for preparation of the record to support his appeal to the court and to provide the governmental agency with a copy.  Costs of appeal, including cost of the record, may be charged against the parties by order of the court of appeals in its discretion.   

C.     Copies of the notice of appeal shall be served upon the governmental agency and proof of service shall be filed with the court in the manner and within the time prescribed by the rules of appellate procedure.   

D.     The filing of a notice of appeal does not stay the effective date of the action appealed from, but the governmental agency may grant, or the court may order, a stay upon appropriate terms.   

E.     Within thirty days after the service of the notice of appeal or within such greater time as the court may allow, the governmental agency shall file in the court the original or a certified copy of the record of the proceedings appealed from. The record shall consist of:   

(1)     the entire proceedings;   

(2)     portions of the proceedings to which the governmental agency and the appellant stipulate; or   

(3)     a statement of the case agreed to by the governmental agency and the appellant.   

F.     If the record is to be of the entire proceedings or portions of the proceedings, it shall be a verbatim written transcript or, if permitted by the court of appeals, it may be an electronic recording.  It shall also include copies of documentary evidence admitted at the hearing or during those portions of the hearing that are stipulated to as the record.   

G.     In any proceeding for judicial review of the adoption, amendment or repeal of a regulation, the court may set aside the action or remand the case to the governmental agency for further proceedings only if it determines that the action is:   

(1)     arbitrary, capricious or an abuse of discretion;   

(2)     not supported by substantial evidence in the record taken as a whole; or   

(3)     otherwise not in accordance with law.   

H.     If the court determines that the action appealed is free from the errors specified under Paragraphs (1) through (3) of Subsection G of this section, it shall affirm the action.