N.M. Admin. Code § 1.2.2.31 - INTERLOCUTORY APPEALS FROM RULINGS OF THE PRESIDING OFFICER

A. General:

(1) Rulings of the presiding officer during the course of a proceeding may only be appealed as provided in this rule.

(2) The commission does not favor interlocutory appeals from the rulings of a presiding officer and expects that appeals will be taken only in extraordinary circumstances. The movant in any such appeal bears the burden of establishing grounds for review and reversal of a ruling of the presiding officer made in the course of the proceeding.

B. Motion to presiding officer to permit appeal:

(1) Any party or the staff may, during a proceeding, move that the presiding officer permit appeal to the commission from a ruling of the presiding officer. The motion must demonstrate that:

(a) the ruling involves a controlling question of law or policy as to which there is substantial ground for difference of opinion and that an immediate appeal to the commission from the ruling may materially advance the ultimate disposition of the proceeding; or

(b) circumstances exist which make prompt commission review of the contested ruling necessary to prevent irreparable harm to any person.

(2) The motion must be filed in writing within three (3) days of the date of an oral ruling or service of a written ruling.

(3) Upon receipt of a motion to permit appeal, the presiding officer shall determine according to the standards of Paragraph (1) of Subsection B of 1.2.2.31 NMAC whether to permit appeal of the ruling to the commission. The presiding officer need not consider any response to the motion.

(4) If the presiding officer permits appeal the presiding officer shall transmit to the commission copies of the ruling being appealed, if written, or a summary of the ruling being appealed, if oral, and any findings of fact, conclusions of law, or opinion relating thereto together with the moving party's motion under Paragraph (1) of Subsection B of 1.2.2.31 NMAC and any response permitted to the motion. The presiding officer may also, but is not required to, transmit to the commission a memorandum setting forth the relevant issues and an explanation of the rulings on the issues.

(5) If the presiding officer does not issue an order under Paragraph (3) of Subsection B of 1.2..2.31 NMAC within fifteen (15) days after the motion is filed, the motion is deemed denied. The movant may appeal denial to the commission within three (3) days of:

(a) the date the motion is deemed denied;

(b) the date the motion is denied by oral ruling; or

(c) the date a written order denying the motion is served, appeal the denial to the commission.

C. Commission action:

(1) Unless the commission acts upon an appeal permitted by a presiding officer under Paragraph (4) of Subsection B of 1.2.2.31 NMAC or upon an appeal taken from the presiding officer's denial of a motion to permit appeal under Paragraph (5) of Subsection B of 1.2.2.31 NMAC within fifteen (15) days after the date the appeal is permitted under Paragraph (4) of Subsection B of 1.2.2.31 NMAC or an appeal is taken under Paragraph (5) of Subsection B of 1.2.2.31 NMAC, the ruling of the presiding officer will be reviewed in the ordinary course of the proceeding as if an appeal had not been made.

(2) In the event the commission decides in its discretion to hear an appeal, it may also in its discretion:

(a) review the motions, briefs, and other documents which were before the presiding officer when the presiding officer issued the order being appealed;

(b) require that the presiding officer transmit to the commission a memorandum explaining the ruling being appealed;

(c) require submission of briefs by staff and the parties; or

(d) direct such other submissions as will assist in its consideration of the issues.

D. Appeal not to suspend proceeding: Any decision by a presiding officer to permit appeal or by the commission to hear an appeal under the provisions of this rule governing interlocutory appeals from rulings of the presiding officer will not suspend the proceeding unless otherwise ordered by the presiding officer or the commission.

Notes

N.M. Admin. Code § 1.2.2.31

1.2.2.31 NMAC - Rp, 17 NMAC 1.2.33, 9-1-08