September 16, 2013 – City of Artesia and Donald N. Raley v. Public Employees Retirement Association of New Mexico, No. 32,355

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: September 16, 2013
NO. 32,355
CITY OF ARTESIA and
DONALD N. RALEY,
Plaintiffs-Appellees,
v.
PUBLIC EMPLOYEES RETIREMENT
ASSOCIATION OF NEW MEXICO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Lisa B. Riley, District Judge
Robles, Rael & Anaya, P.C.
Marcus J. Rael, Jr., Esq.
Adam H. Greenwoood, Esq.
Vanessa R. Chavez, Esq.
Albuquerque, NM
for Appellees
Public Employees Retirement Association
Susan G. Pittard, General Counsel
Christopher Bulman, Assistant General Counsel
Santa Fe, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	The City of Artesia (the City) and its Chief of Police Donald Raley (Raley)
(Plaintiffs) filed an action for injunctive relief, writ of mandamus, and declaratory
judgment to prevent the Public Employees Retirement Association of New Mexico
(PERA) from suspending Raley’s pension after the March 2012 municipal election in
Artesia. When Raley was appointed to this position, NMSA 1978, Section 10-11-
8(D) (2004) (amended 2010) provided that a PERA retiree appointed as a chief of
police for a municipality had the option of filing an irrevocable exemption from PERA
membership for the chief of police’s “term of office.” 	In 2010, the Legislature
amended Section 10-11-8 and removed this chief of police exemption. The district
court determined that PERA could not apply the 2010 version of Section 10-11-8 to
Raley because the City appointed Raley for an indefinite term. We hold that Raley’s
term of office coincides with the City’s organizational meeting following the
municipal election held every two years and, therefore, the district court erred in
determining that Raley’s term of office was for an indefinite term. Accordingly, we
reverse.

2
BACKGROUND
{2} 	The City appointed Raley to the position of chief of police in September 2006.
At the time of his appointment, Raley was a PERA retiree and received a pension.
At that time, Section 10-11-8(D) (2004) provided that a PERA retiree appointed as a
chief of police for a municipality had the option of filing an irrevocable exemption
from PERA membership for the chief of police’s “term of office.” This exemption
allowed Raley to receive both his pension and his salary without either Raley or the
City having to make contributions to the PERA trust fund. Id. The City submitted the
required exemption request form when it appointed Raley and left blank the line
indicating the end date of Raley’s “term of office.”
{3} 	In 2010, the Legislature amended Section 10-11-8 and removed the chief of
police exemption. 	See NMSA 1978, § 10-11-8 (2010). 	The effect of the 2010
amendment on Raley’s exemption gives rise to the dispute in this case. Plaintiffs’
position is that Raley’s 2006 appointment was for an “indefinite term,” and, therefore,
the exemption remained in effect until his service with the City was interrupted or
terminated. PERA asserts that municipal appointees, including a chief of police, serve
definitive 	terms 	of 	two 	years, 	subject 	to 	reappointment 	at 	a 	municipality’s
organizational meeting following each biennial municipal election. 	According to
PERA, Raley’s exemption ended when the City held its organizational meeting

3
following the March 2012 municipal election because Raley’s position required
appointment and reappointment every two years.
{4} 	After a substantive hearing on November 16, 2011, the district court granted a
preliminary injunction preventing PERA from suspending Raley’s pension following
the election. 	It subsequently issued its final order allowing Raley to continue to
simultaneously receive his salary and his pension for an indefinite period, applying
the pre-2010 version of Section 10-11-8. 	The district court found that the City
appointed Raley as the chief of police for an “indefinite term” in 2006 and that PERA
could not terminate Raley’s exemption based on the 2010 amendment to Section 10-
11-8(D). PERA filed a timely appeal.
{5} 	On appeal, PERA raises three issues, that the district court erred by (1)
determining that the City has standing to litigate the issue of Raley’s eligibility to
simultaneously receive a salary and a pension, (2) finding that Raley was appointed
for an “indefinite term” and that therefore a termination of his exemption pursuant to
the 2010 amendment to Section 10-11-8(D) would constitute a violation of state law,
and (3) granting injunctive relief prohibiting PERA from terminating Raley’s
exclusion on or after the March 2012 organizational meeting.

4
CITY OF ARTESIA’S STANDING
{6} 	We first turn to the issue of the City’s standing. According to PERA, “the City
is neither classically aggrieved nor has it provided any basis for standing under the
Declaratory Judgment Act, NMSA 1978, §§ 44-6-1 to -15 (1975), [and] therefore, the
district court erred in concluding the City also had standing.”
{7} 	Unlike in federal courts, standing in New Mexico courts is not jurisdictional
because it is not governed by the New Mexico Constitution. ACLU of N.M. v. City of
Albuquerque, 2008-NMSC-045, ¶ 9, 144 N.M. 471, 188 P.3d 1222. However, “at least
as a matter of judicial policy if not of jurisdictional necessity, our courts have
generally 	required 	that 	a 	litigant 	demonstrate 	injury 	in 	fact, 	causation, 	and
redressability to invoke the court’s authority to decide the merits of a case.” Id. ¶ 10.
The standing of a party to bring a claim is a question of law subject to de novo review.
N.M. Gamefowl Ass’n, Inc. v. State ex rel. King, 2009-NMCA-088, ¶ 12, 146 N.M.
758, 215 P.3d 67.
{8} 	But, even though the district court granted the City standing to litigate the
issues in this case, we do not consider standing to be necessary for our review. Raley
is also a Plaintiff, and PERA concedes that there is no dispute that “Raley has standing
to litigate the proper application of [the 2010 amendment to Section 10-11-8(D)]
because it directly affects his ability to continue to receive both a salary and a

5
pension.” Because Raley has standing to assert the substantive relief sought in this
case, we need not independently address the City’s standing. See Comcast Corp. v.
Fed. Commc’n Comm’n, 579 F.3d 1, 6 (D.C. Cir. 2009) (“[I]f one party has standing
in an action, a court need not reach the issue of the standing of other parties when it
makes no difference to the merits of the case.” (internal quotation marks and citation
omitted)). We proceed to the merits of the case.
SECTION 10-11-8(D)
{9} 	Prior to the 2010 amendment, the PERA return-to-employment provisions
provided that “a retired member may be subsequently employed by an affiliated public
employer if” certain conditions applied. Section 10-11-8(C) (2004). These conditions
included 	that 	the 	retired 	member 	and 	the 	affiliated 	employer 	“shall” 	make
contributions to the PERA fund. Section 10-11-8(C)(2), (3) (2004). Section 10-11-
8(D)(1)(c) (2004) contained an exemption for a PERA retiree who was appointed as
the chief of police of a municipality for the duration of the chief of police’s “term of
office.” 	The exemption allowed the chief of police to continue receiving a PERA
pension and a salary without either the retiree or the retiree’s employer making
contributions to the fund. See Section 10-11-8(D)(1) (2004).
{10} 	After the 2010 amendment, Section 10-11-8 provides that a retired member
may subsequently be employed by an affiliated employer but, among other conditions,

6
“the retired member’s pension shall be suspended upon commencement of the
employment[.]” Section 10-11-8(C)(2). The amendment went into effect on July 1,
2010. 2010 N.M. Laws, ch. 18, § 2.
{11} 	PERA argues that the district court erred by finding that Raley was appointed
for an “indefinite term” as chief of police, that the chief of police exemption therefore
still applies, and that suspending Raley’s pension would constitute a violation of state
law. On the other hand, Plaintiffs contend that the phrase “term of office” does not
contemplate a fixed term and that Raley and the City “have long agreed and
understood” that his term is for an indefinite length. The parties agree that, because
the chief of police exemption was no longer available after July 1, 2010, a retired
member appointed to the position of chief of police after July 1, 2010 would be
subject to the new statutory provisions. 	The issue in this case is whether Raley’s
“term of office” ended upon the March 2012 municipal election and subsequent
organizational meeting. This issue requires statutory interpretation of Section 10-11-
8(D)(1) and is therefore primarily a question of Legislative intent. See Bd. of Educ.
v. N.M. State Dep’t of Pub. Educ., 1999-NMCA-156, ¶ 16, 128 N.M. 398, 993 P.2d
112 (“The primary purpose of statutory interpretation is to ascertain and give effect
to legislative intent.” (internal quotation marks and citation omitted)).

7
{12} 	The “primary indicator” of legislative intent is the language of the statute.
Gonzales v. State Pub. Emps. Ret. Ass’n, 2009-NMCA-109, ¶ 13, 147 N.M. 201, 218
P.3d 1249 (internal quotation marks and citation omitted). “We do not depart from
the plain language of a statute unless we must resolve an ambiguity, correct a mistake
or absurdity, or deal with a conflict between different statutory provisions.” N.M. Bd.
of Veterinary Med. v. Riegger, 2007-NMSC-044, ¶ 11, 142 N.M. 248, 164 P.3d 947.
Additionally, we determine the legislative intent “by reading all the provisions of a
statute together, along with other statutes in pari materia.” N.M. Mining Ass’n v. N.M.
Water Quality Control Comm’n, 2007-NMCA-010, ¶ 12, 141 N.M. 41, 150 P.3d 991.
{13} 	Our Supreme Court has addressed the meaning of the word “term” and whether
a “term of office” has expired in a different context in Denish v. Johnson, 1996-
NMSC-005, 121 N.M. 280, 910 P.2d 914. The issue in Denish was whether the terms
of office of two regents at the New Mexico Institute of Mining and Technology had
expired so that the governor could appoint their replacements. Id. ¶¶ 1, 15. The Court
defined “term” as “the fixed period of time the appointee is authorized to serve in
office. It is a period that is established by law and specified by the executive in his
or her letters of appointment.” Id. ¶ 18.
{14} 	Our Supreme Court again addressed the word “term” and phrase “term of
office” in Block v. Vigil-Giron, 2004-NMSC-003, 135 N.M. 24, 84 P.3d 72. In Block,

8
the plaintiff was a member of the Public Regulatory Commission (PRC) who sought
a declaration to be put on the ballot in the next general election to run for a second
four-year term. Id. ¶ 1. The plaintiff had served a two-year term upon the creation of
the PRC, which was necessary in order for the members to serve staggered terms, and
was subsequently elected to a full four-year term. 	Id. ¶ 2. 	The New Mexico
Constitution limits PRC members from serving for more than two terms. Id. ¶ 1. The
plaintiff argued that since his first term was a shortened two-year term, he had not
served two terms and was entitled to run for a second four-year term. Id. The Court
examined the “normal understanding of the word ‘term’ ” and determined that it
means a “fixed and definite period of time; implying a period of time with some
definite termination.” Id. ¶ 5 (quoting Black’s Law Dictionary 1482 (7th ed. 1999)).
The Court further defined “term of office” as the “period during which an elected
officer or appointee may hold office, perform its functions, and enjoy its privileges
and emoluments.” Id. (quoting Black’s Law Dictionary, supra, at 1483). The Court
applied these definitions, noted that they were consistent with Denish, and held that
the plaintiff had served two terms and was therefore ineligible to be on the ballot.
Id. ¶ 6.
{15} 	Applying these definitions, the legislative intent of the phrase “term of office”
in Section 10-11-8(D)(1) (2004) refers to the period during which the chief of police

9
may hold the office, perform its functions, and enjoy its privileges. We turn to the
statutes outlining the appointment of municipal officers and employees in the
Municipal Code, NMSA 1978, §§ 3-1-1 to 3-66-11 (1965, as amended through 2011),
to determine if the district court erred in concluding that Raley’s appointment as chief
of police was for an “indefinite term.”
{16} 	Section 3-11-6(A)(1) (1965) provides that “[s]ubject to the approval of a
majority of all members of the governing body [of a municipality], the mayor shall:
(1) appoint all officers and employees except those holding elective office[.]” Under
Section 3-12-4(A) (1965), the chief of police is one of the appointive officers of a
municipality. Section 3-11-5(A) (1985) provides that
[a]t the organizational meeting of the governing body [following a
municipal election], the mayor shall submit, for confirmation by the
governing body, the names of persons who shall fill the appointive office
of the municipality . . . . 	If the governing body fails to confirm any
person as an appointive official or employee of the municipality, the
mayor at the next regular meeting of the governing body shall submit the
name of another person to fill the appointed office or to be employed by
the municipality.
The Municipal Code mandates that regular elections be held on the first Tuesday in
March on even numbered years. 	Section 3-8-25 (1985). 	It also provides that the
organizational meeting following a municipal election shall be held “not earlier than
the sixth day after the election or later than the twenty-first day after the election.”
Section 3-8-33(H) (1995).

10
{17} 	In compliance with the provisions of the Municipal Code, a municipality’s chief
of police cannot have an “indefinite term” because the term is dependent on the results
of each election, an appointment by the mayor at the organizational meeting, and
confirmation by the governing body. Under the plain meaning of “term of office” as
defined by 	Denish 	and 	Block, and in conjunction with the appointment and
confirmation provisions in the Municipal Code, the term of office for a chief of police
begins with the organizational meeting confirming the mayor’s appointment and lasts
until the next organizational meeting held following the next municipal election. In
other words, the chief of police serves a two-year term commencing on the
organizational meeting in which he or she is appointed until the next organizational
meeting. Accordingly, Raley served a term of office that commenced following the
March 2010 election and expired when he was appointed and confirmed at the
organizational meeting following the March 2012 election. See Denish, 1996-NMSC-
005, ¶ 16 (“A term expires when the appointee has served to the legally specified
termination date.”). The district court therefore erred in determining that Raley’s term
of office was indefinite and mandating that PERA apply the pre-2010 version of
Section 10-11-8 to Raley.
{18} 	We note that Section 10-11-8(D) (2010) contained two exemptions from the
return-to-employment provisions. 	Both exemption provisions apply to retirees

11
employed in temporary positions, or serving in an elected office, with a definitive end.
See id. (providing exemptions from the PERA return-to-work provisions for retirees
(1) employed by the Legislature for legislative session work, and (2) elected to serve
a term as an elected official). 	These provisions support a conclusion that the
Legislature only provided exemptions to retirees employed in positions with definitive
terms. See also Section 10-11-8(E) (2013) (adding exemption for retirees employed
temporarily as precinct board members for elections).
{19} 	Plaintiffs make five additional arguments as to why our conclusion is incorrect.
First, Plaintiffs contend that “[g]iven that [the Municipal Code] treat[s] municipal
officers and employees similarly, the municipal authority over appointed officials
should be similar to the authority over regular employees. There is no dispute that
municipal employees do not serve ‘terms of office’ that terminate and re-start each
election year.” Accordingly, Plaintiffs’ position is that municipal officers do not serve
fixed terms of office under the Municipal Code. In support, Plaintiffs point out that
Section 3-11-5(A) mandates that the mayor “shall submit, for confirmation by the
governing body, the names of persons who shall fill the appointive offices of the
municipality and the names of persons who shall be employed by the municipality.”
However, Section 3-11-5(B) provides that “[a]ny person holding an appointed office
at the time of the municipal election shall continue in that office until his successor

12
has been appointed and is qualified.” 	This holdover provision does not apply to
employees of the municipality who are not appointed officers. 	It would be
unnecessary if the Legislature intended that appointed officers serve indefinite terms.
See Denish, 1996-NMSC-005, ¶ 51 (holding that a holdover provision in our state
constitution “is not a simple extension of the expired term[, r]ather it is an intrusion
into the term following”). The lack of a similar holdover provision that applies to
employees supports a distinction between municipal employees and appointed officers
despite the similar treatment under Section 3-11-5(A).
{20} 	Second, Plaintiffs argue that the Municipal Code never expressly states that the
term of office for the chief of police is “fixed” and that Raley and the City have “long
agreed and understood” that Raley’s appointment was “indefinite” when the mayor
appointed Raley in 2006. 	However, as we have discussed, the Municipal Code
requires the mayor to reappoint and the governing body to confirm the chief of police
every two years, which is inconsistent with any asserted agreement between Raley and
the City that Raley’s appointment was indefinite. See § 3-11-6(A)(1); § 3-11-5(A).
The length of Raley’s “term of office” as defined by the Municipal Code has legal
superiority over any inconsistent agreement between the parties. See K.R. Swerdfeger
Constr., Inc. v. Bd. of Regents, Univ. of N.M., 2006-NMCA-117, ¶ 27, 140 N.M. 374,
142 P.3d 962 (“Our case law has repeatedly recognized that New Mexico . . . has a

13
strong public policy of freedom to contract that requires enforcement of contracts
unless they clearly contravene some law or rule of public morals.” (internal quotation
marks and citation omitted)). Under the provisions we have discussed, the chief of
police serves a term that is fixed in the sense that it commences upon appointment and
confirmation 	at 	or 	subsequent 	to 	an 	organizational 	meeting 	and 	requires
reappointment and confirmation at the next organizational meeting following every
biennial municipal election.
{21} 	Third, Plaintiffs argue that the relevant portions of the Municipal Code relating
to the discharge of municipal officers are “statutory indicia lead[ing] to the conclusion
that municipal officers serve indefinitely” because the “mayor and the municipal
governing body may . . . discharge appointed persons at any time.” Indeed, Section
3-11-6(D) provides that “(1) the governing body may discharge an appointed official
or employee by a majority of all members of the governing body; (2) the mayor may
discharge an appointed official or employee upon the approval of a majority of all the
members of the governing body[.]” 	However, there is no contradiction between a
fixed two-year term and the removal power upon a majority vote by the governing
body during that fixed term. 	Early removal of an appointed officer is one of the
additional statutory powers granted to a municipality by the Legislature. Section 3-
11-6(D).

14
{22} 	Fourth, Plaintiffs argue that if the Legislature “wishes to make clear that a term
is for a definite period, it says so.” 	See, e.g., NMSA 1978, § 32A-5-42(B) (1993)
(requiring criminal sentences of a “definite term” for the crime of unauthorized
facilitation of adoptions); NMSA 1978, § 54-1A-406(A) (1997) (referring to
partnerships for a “definite term”). But the statutes at issue in this case are different
from the examples cited by Plaintiffs and there is no ambiguity as to the “term of
office” in light of the provisions of the Municipal Code. As discussed, Section 10-11-
8(D)(1) (2004) generally provided an exemption from the return-to-work procedures
for the “term of office” of a chief of police. The Municipal Code defines the length
of the term of office. Dydek v. Dydek, 2012-NMCA-088, ¶ 58, 288 P.3d 872 (“[A]s
a rule of statutory construction, we read all provisions of a statute and all statutes in
pari materia together in order to ascertain the legislative intent.” (alteration in original)
(internal quotation marks and citation omitted)).
{23} 	Lastly, Plaintiffs argue that Denish is distinguishable and that “it is simply not
true that Denish was adopting a general definition of ‘term’ that was meant to apply
outside the state-officer context of the case.” In Block, our Supreme Court clarified
that the “normal understanding” of the word “term” is that it is the “period during
which an elected officer or appointee may hold office, perform its functions, and enjoy
its privileges and emoluments.” 2004-NMSC-003, ¶ 5. The Block Court noted that

15
the definition it applied was consistent with Denish. Denish and Block both generally
applied the plain meaning of the word “term” to the statutes and constitutional
provisions at issue in those cases, as we have done in this case. See Gonzales, 2009-
NMCA-109, ¶ 13.
CONCLUSION
{24} 	Raley’s term of office concluded with the City’s organizational meeting
following the 2012 municipal election, and, therefore, the district court erred in
determining that Raley’s term of office was for an indefinite term. Accordingly, we
reverse.
{25} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
TIMOTHY L. GARCIA, Judge
________________________________
M. MONICA ZAMORA, Judge