August 25, 2010 – State of New Mexico Human Rights Commission, In the Matter of Sandra Bankston v. Accurate Machine & Tool Co., Inc., No. 29,003

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	______________
Filing Date: 	August 25, 2010
NO. 	29,003
STATE OF NEW MEXICO
HUMAN RIGHTS COMMISSION,
Petitioner-Appellee,
In the Matter of SANDRA BANKSTON,
Claimant,
v.
ACCURATE MACHINE & TOOL
CO., INC.,
Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Theresa Baca, District Judge
Gary K. King, Attorney General
Tania Maestas, Assistant Attorney General
Stephen A. Vigil, Assistant Attorney General
Santa Fe, NM
for Appellee

Dubois, Cooksey & Bischoff, P.A.
William J. Cooksey
Albuquerque, NM
Wagner, Ford & Associates, P.A.
Kenneth R. Wagner
L. Helen Bennett
Albuquerque, NM
for Appellant
Geer, Wissel & Levy, P.A.
Jane C. Levy
Robert D. Levy
Albuquerque, NM
for Claimant Amicus Curiae

OPINION
ROBLES, Judge.
{1} 	Accurate Machine & Tool Co., Inc. (Accurate) appeals the district court’s order
enforcing a judgment from the Human Rights Commission (HRC), awarding Sandra
Bankston (Claimant) $63,657.05 for discrimination claims based on sexual harassment
and retaliation. Accurate argues that the HRC lacked subject matter jurisdiction when
it entered its judgment, and it was therefore improper for the district court to enforce
the HRC’s determination. 	Accurate also argues that the HRC conducted a “one[-
]sided” and “cursory” investigation. We affirm.
I. 	BACKGROUND
{2} 	Claimant filed her complaint with the HRC against Accurate on October 7,
2005, alleging sexual harassment and retaliation. 	The HRC issued a written
complaint, which was served on Accurate on September 28, 2006, with hearing dates
set for October 11 and 12, 2006. 	NMSA 1978, § 28-1-10(F) (2005) (“[T]he
commission shall issue a written complaint in its own name against the respondent
[which] shall set forth the alleged discriminatory practice [and] shall require the
respondent to answer the allegations of the complaint at a hearing . . . not . . . more
than fifteen or less than ten days after service of the complaint.”). The hearing dates
were later rescheduled for October 23 and 24, 2006. Although this Court does not

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have a record of the HRC hearings, it appears that, on October 23, 2006, at the first
hearing, Accurate argued that the HRC had lost subject matter jurisdiction to hear the
complaint because the hearing was taking place outside of the statutorily required
fifteen days within which a hearing must be held following the service of a complaint.
Id. The hearing officer disagreed and continued the hearing. On July 16, 2007, the
HRC issued a written final order that concluded that Claimant had proved, by a
preponderance of the evidence, that Accurate had violated NMSA 1978, Section 28-1-
7 (2004). 	Claimant was awarded damages and attorney fees in the amount of
$63,657.05. Accurate did not appeal and did not pay Claimant.
{3} 	By May 9, 2008, Accurate had not complied with HRC’s judgment. Claimant
sought assistance through the Secretary of Labor who, in turn, requested that the
Attorney General’s Office secure enforcement of the HRC’s decision in district court.
NMSA 1978, § 28-1-12 (1987) (“If a respondent to a complaint filed pursuant to the
Human Rights Act . . . is not complying with an order of the commission, the attorney
general . . . at the request of the secretary, shall secure enforcement of the
commission’s order by a district court. The proceeding shall be initiated by the filing
of a petition in the district court[.]” 	(citation omitted)). 	Following the filing of a
petition to enforce the HRC’s order, the district court held a hearing during which the
merits of the petition were argued by the Attorney General’s Office and Accurate.

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Accurate argued that subject matter jurisdiction can be raised collaterally at any time.
The district court granted the petition to enforce the HRC’s order. 	This appeal
followed.
II. 	DISCUSSION
A. 	Subject Matter Jurisdiction
{4} 	The question of subject matter jurisdiction does not require preservation. See
Rule 12-216(B) NMRA. 	This Court determines de novo whether an agency has
subject matter jurisdiction of a case and personal jurisdiction over parties. 	Citizen
Action v. Sandia Corp., 2008-NMCA-031, ¶ 12, 143 N.M. 620, 179 P.3d 1228.
Appeals from courts or agencies that lack subject matter jurisdiction will confer no
jurisdiction on this Court. Id. ¶ 13.
{5} 	On appeal, Accurate argues that, by holding the hearing outside of the
statutorily required fifteen days after being served with the complaint, the HRC lacked
subject matter jurisdiction to hear Claimant’s complaint in the first instance. See § 28-
1-10(F). It is, therefore, Accurate’s position that failure to comply with the mandatory
statutory requirements was a jurisdictional bar to Claimant’s action and, citing Lopez
v. New Mexico Board of Medical Examiners, 107 N.M. 145, 754 P.2d 522 (1988),
Accurate argues that the HRC’s decision was void and that its enforcement must be
reversed. Finally, Accurate states that because the challenge is to the subject matter

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jurisdiction of the HRC, this issue may appropriately be brought in a collateral
proceeding. We disagree.
{6} 	In Lopez, the question before our Supreme Court was whether the statutorily
allotted amount of time given for an administrative agency to render a decision was
jurisdictional or procedural. Id. at 146-47, 754 P.2d at 523-24. After examining the
plain language of the controlling statute, our Supreme Court concluded that the
language was jurisdictional and, therefore, the agency’s decision was void. Id. at 147,
754 P.2d at 524; but see N.M. Dep’t of Health v. Compton, 2000-NMCA-078, ¶ 12,
129 N.M. 474, 10 P.3d 153 (noting that some mandatory statutory time limitations are
not jurisdictional, but rather are intended to promote expeditious review); Redman v.
Bd. of Regents, 102 N.M. 234, 238-39, 693 P.2d 1266, 1270-71 (Ct. App. 1984)
(same). 	However, Lopez involved direct appeals from an agency’s determination.
107 N.M. 145, 754 P.2d 522. In the instant case, we conclude that before the merits
of Accurate’s arguments may be reached, this Court must examine the ramifications
of challenges to subject matter jurisdiction in collateral proceedings.
{7} 	Collateral attacks are efforts to defeat judgments, their force, or their effects in
an incidental proceeding not provided by law for the express purpose of attacking the
judgment. 	See State ex rel. Children, Youth & Families Dep’t v. Andree G.,
2007-NMCA-156, ¶ 19, 143 N.M. 195, 174 P.3d 531. Accurate appears to be making

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two arguments supporting its position that the present appeal is not a collateral attack.
On the one hand, Accurate argues that an order from the HRC is not self-executing,
that the statutory framework provides for two types of direct appeal to district court,
and that the present case is one of those types of direct appeal. On the other hand,
Accurate appears to argue, in the alternative, that although collateral attacks on subject
matter jurisdiction are generally not permissible, if this Court determines that
Accurate’s challenge to the HRC’s order is a collateral attack, such an attack would
be permissible in the present case because it falls within a recognized exception. We
address both contentions.
1. 	The Present Case is not a Direct Appeal
{8} 	Accurate acknowledges that it did not appeal the HRC’s order of July 16, 2007,
awarding Claimant money for damages and attorney fees. 	Accurate contends,
however, that “[t]he HRA provides for two avenues of direct appeal.” 	The first is
NMSA 1978, Section 28-1-13 (2005), which requires the filing of the notice of appeal
within ninety days of the entry of the HRC’s order, and the second is the enforcement
proceeding of Section 28-1-12. We consider the provisions of each statute.
{9} 	Section 28-1-13 provides, in pertinent part:
A person aggrieved by an order of the [HRC] may obtain a trial de
novo in the district court of the county where the discriminatory practice
occurred or where the respondent does business by filing a notice of
appeal within ninety days from the date of service of the commission’s

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order.
Section 28-1-13(A). This statute clearly contemplates that an aggrieved party, not a
prevailing party, may appeal from the HRC’s order if the party so desires. 	In this
case, Accurate was the aggrieved party and, for whatever reason, it elected not to
appeal.
{10} 	The relevant part of Section 28-1-12 provides:
If a respondent to a complaint filed pursuant to the [HRA] is not
complying with an order of the commission, the attorney general or
district attorney, at the request of the secretary, shall secure enforcement
of the commission’s order by a district court.
This statute contemplates that the prevailing party may seek assistance in obtaining
enforcement of an HRC order if the respondent fails to comply with the order. This
is precisely what happened in the present case—the Attorney General’s Office sought
enforcement on Claimant’s behalf in district court.
{11} 	Accurate’s chain of logic posits that Section 28-1-13 is permissive and not
mandatory, ostensibly because an aggrieved party may or may not appeal an adverse
order and, in the absence of a direct appeal, if an enforcement petition is filed in
district court under Section 28-1-12, the district court would have the “discretion [to]
make an order to decree enforcement of the order of the [HRC].” Therefore, Accurate
maintains, if the district court has the discretion to enforce the HRC’s order, the
Legislature must have intended to give the district court the power to entertain

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challenges to the HRC’s subject matter jurisdiction as part of an enforcement action,
which is the same power the court would have if the aggrieved party had appealed
under Section 28-1-13. We disagree with Accurate.
{12} 	Accurate cites no case law that directly supports this proposition. When a party
cites no authority for a proposition, we assume that, after a diligent search, it was
unable to find authority for support. In re Adoption of Doe, 100 N.M. 764, 765, 676
P.2d 1329, 1330 (1984) (holding that issues raised in appellate briefs that are
unsupported by cited authority need not be reviewed on appeal). Accurate does not
direct this Court to an analogous administrative statutory scheme, whereby direct
appeals may be obtained by no action on the part of the aggrieved party. See Rule 12-
213(A)(4) NMRA (stating that briefs submitted to this Court “shall contain a
statement of the applicable standard of review, the contentions of the appellant and
a statement explaining how the issue was preserved in the court below, with citations
to authorities, record proper, transcript of proceedings or exhibits relied on” (emphasis
added)). Accurate’s argument essentially makes the provisions of Section 28-1-13
superfluous 	to 	Section 	28-1-12. 	See 	In 	re 	Adjustments 	to 	Franchise 	Fees,
2000-NMSC-035, ¶ 14, 129 N.M. 787, 14 P.3d 525 (stating that statutes must be
interpreted, so that no part is rendered “surplusage or superfluous” (internal quotation
marks and citation omitted)). Accurate fails to explain why there would be a need for

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a statutory provision that provides for direct appeal when waiting would likewise
perfect an appeal. Under this view, an aggrieved party could simply ignore an adverse
HRC order, decline to appeal from it, and hope that the prevailing party did not seek
to enforce the order. Then, if the prevailing party did seek enforcement, the aggrieved
party could have a second bite at the apple and assert all the errors it perceived at the
HRC proceeding.
{13} 	Such an interpretation would also run counter to our rules that provide the
procedures for administrative appeals. Rule 1-074(B)(2) NMRA provides specifically
that appeals from the HRA are governed exclusively by Rule 1-076 NMRA. 	The
provisions of Rule 1-076 do not suggest that an aggrieved party is entitled to a direct
appeal by simply waiting for an enforcement action. On the contrary, Rule 1-076(D)
provides that appeals must be taken within ninety days and Rule 1-076(B) and (L)
provide that the appeal is taken by the aggrieved party not the prevailing party. We
conclude that Accurate’s waiting of nearly a year without taking any action to enforce
an existing judgment is not a direct appeal and, therefore, the petition to enforce the
HRC’s order filed in district court was a collateral proceeding.
2. 	Accurate’s Collateral Attack is not Permissible
{14} 	In Andree G., we held that, where a party had the ability to challenge subject
matter jurisdiction in the original action, no attack on the final judgment may be made

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in 	a 	collateral 	matter. 	2007-NMCA-156, 	¶ 	20; 	see 	Thoma 	v. 	Thoma,
1997-NMCA-016, ¶ 16, 123 N.M. 137, 934 P.2d 1066 (filed 1996) (holding that a
judgment that may be erroneous and barred by claim preclusion must be challenged
on appeal and cannot be attacked collaterally in another proceeding and in another
court); see also Cordova v. Larsen, 2004-NMCA-087, ¶ 15, 136 N.M. 87, 94 P.3d 830
(holding that “[a] party that has had an opportunity to litigate the question of subject-
matter jurisdiction may not . . . reopen that question in a collateral attack upon an
adverse judgment” (alterations in original) (internal quotation marks and citation
omitted)). “In such a case, the litigant had the opportunity to raise the jurisdictional
issue 	in 	the 	initial 	litigation 	and 	slept 	on 	that 	opportunity.” 	Andree 	G.,
2007-NMCA-156, ¶ 20 (internal quotation marks and citation omitted). However,
citing Restatement (Second) of Judgments § 12 (1982), we did recognize three
exceptions where a final judgment would not preclude a collateral attack on subject
matter jurisdiction.
(1) 	The subject matter of the action was so plainly beyond the court’s
jurisdiction that its entertaining the action was a manifest abuse of
authority; or
(2) 	Allowing the judgment to stand would substantially infringe the
authority of another tribunal or agency of government; or
(3) 	The judgment was rendered by a court lacking capability to make
an adequately informed determination of a question concerning its own
jurisdiction and as a matter of procedural fairness the party seeking to

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avoid the judgment should have opportunity belatedly to attack the
court’s subject matter jurisdiction.
Andree G., 2007-NMCA-156, ¶ 21.
{15} 	Accurate argues that the immediate case falls within the third exception
articulated in the Restatement (Second) of Judgments § 12 and recognized in Andree
G. Accurate’s argument is that hearing officers lack the capability to make adequately
informed determinations of their own jurisdiction, and the question of whether an
administrative agency has jurisdiction over parties or subject matter in a given case
is a question of law. Finally, Accurate notes that when an appellate court reviews an
agency’s determination of jurisdiction, little deference is given to the agency’s
conclusion, and the standard of review is de novo. In re Qwest Commc’ns Int’l, Inc.,
2002-NMSC-006, ¶ 3, 131 N.M. 770, 42 P.3d 1219. The crux of the third exception
to the bar against collaterally attacking subject matter jurisdiction is that out of
procedural fairness, a party should be allowed to belatedly attack the original and
erroneous jurisdictional determination. Accurate had that opportunity. After making
subject matter jurisdiction arguments to the hearing officer, Accurate was entitled to
appeal to the district court, but failed to do so. 	See § 28-1-13(A) (allowing ninety
days from the date of service of the commission’s order for filing notice of appeal).
The Restatement (Second) of Judgments § 12 cmt. e. further emphasizes this point.

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The 	policies 	favoring 	finality 	over 	validity 	presuppose 	that 	fair
opportunity is available to contest subject matter jurisdiction in the court
whose jurisdiction is in question. . . . 	Generally, the rules also afford
opportunity for appellate review, through extraordinary writ if not
otherwise, of the first instance court’s determination of its subject matter
jurisdiction.
{16} 	The focus of the third exception pertains to procedural facilities that are not
always provided in courts of limited jurisdiction. “Their rules of procedure sometimes
make appellate review difficult or burdensome.” 	Id. 	It is therefore when “[t]he
opportunity to challenge subject matter jurisdiction in such a forum may . . . be
inadequate” that a subsequent collateral attack on a judgment “may . . . be permitted.”
Id. In the case at bar, we fail to see how the HRC’s determination regarding subject
matter jurisdiction foreclosed Accurate from raising the issue on appellate review,
such that the only alternative available was a collateral attack.
{17} 	We conclude that Accurate was afforded the opportunity to challenge the
HRC’s subject matter jurisdiction through the appeals process. 	Moreover, in the
interests of procedural fairness, after actually litigating the HRC’s subject matter
jurisdiction and then taking no further action, Accurate’s subsequent claims in another
proceeding that attempt to readdress the HRC’s subject matter jurisdiction are
outweighed by the principle of finality in this particular case.
B. 	The HRC’s Investigation
{18} 	We now turn to Accurate’s argument that the HRC conducted a cursory

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investigation that was “last minute” in nature and set up a “rush to judgment.”
Accurate contends that the HRC’s investigative actions “rubber-stamp[ed]” the filing
of the claim of discrimination, and there was no effort made to independently
“uncover the truth.” We conclude that this issue is not properly before us. This case
is an appeal from the district court’s order to decree enforcement of the order of the
HRC. Accurate’s contentions necessarily involve the merits of the case and an attack
on the HRC’s final order. Accurate had the opportunity to properly bring this issue
via an appeal under Section 28-1-13 and declined to do so.
III. 	CONCLUSION
{19} 	We affirm the district court’s enforcement of the order from the HRC and
remand this case to district court for further proceedings.
{20} 	IT IS SO ORDERED.
_______________________________
ROBERT E. ROBLES, Judge
WE CONCUR:
____________________________
CYNTHIA A. FRY, Chief Judge
____________________________
CELIA FOY CASTILLO, Judge