August 15, 2019- Board of Education v. Public Education Department, No. A-1-CA-36445

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| IN THE COURT OF APPEALS OF THE STA1 | OF NEW MEXIC™
Court of Appeals of New Mexico

BOARD OF EDUCATION FOR THE Filed 8/15/2019 11:39 AM
© RIO RANCHO PUBLIC SCHOOLS, / [>
~

4 Petitioner-Petitioner, Mark Reynol

5] v. No. A-1-CA-36445
6] PUBLIC EDUCATION DEPARTMENT,

71 SECRETARY DESIGNATE HANNA

8i SKANDERA, and PUBLIC

9] EDUCATION COMMISSION,
10 Respondents-Respondents,
11] and

12" ALBUQUERQUE INSTITUTE FOR
13; MATHEMATICS AND SCIENCE AT
14| UNM,

15 Intervenor.

16] APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
17} David K. Thomson, District Judge

18] Cuddy & McCarthy, LLP
19] Charlotte H. Hetherington
20} Andrea Salazar

21] Santa Fe, NM

22\| for Petitioner

1 New Mexico Public Education Department
2 	Office of General Counsel
3 Dawn E. Mastalir
4 	Santa Fe, NM
5 	for Respondent
6 Esquivel & Howington, LLC
7 Martin R. Esquivel
8 Albuquerque, NM
9 	for Intervenor
10 Cuddy & McCarthy, LLP
11 	R. Daniel Castille
12 	Santa Fe , NM
13 	for Amici Curiae New Mexico School Boards Association and New Mexico School
14 Superintendents' Association
15 	MEMORANDUM OPINION
16 	VARGAS, Judge.
17 {I} 	The Rio Rancho Public School Board of Education (Appellant) appeals the
18 	secretary of public education's decision to waive the requirements of the Charter
19 Schools Act , NMSA 1978, §§ 22-8B-l to -17.1 (1999, as amended through 2019)
20 	and allow the Albuquerque Institute for Mathematics and Science at the University
21 	of New Mexico (AIMS), an Albuquerque-based charter school seeking to establish
22 	separate facilities in Rio Rancho, to open a second location in the Rio Rancho Public
23 	School District. Appellant argues that the Secretary's decision was arbitrary and
24 	capricious, was not supported by substantial evidence, was outside the scope of her
2

1 authority, 	and 	was 	otherwise 	inconsistent 	with 	law. 	Because 	we 	agree 	with
2 Appellant that the Secretary ' s decision was not supported by substantial evidence,
3 we need not address Appellant' s other arguments. This being a memorandum
4 opinion, we limit our recitation of the facts and law to only that necessary to our
5 disposition of the case.
6 BACKGROUND
7 	{2} 	In 2013 , AIMS sought to amend its charter in two ways: by increasing the
8 admissions cap, and by creating a second campus to facilitate the admissions
9 increase. In its amendment proposal, AIMS listed possible additional locations:
10 UNM' s Los Lunas campus, UNM' s north campus in Albuquerque, or UNM' s west
11 	campus in Rio Rancho. AIMS presented the Public Education Commission (the
12 	Commission) with its proposal during a public meeting on February 1, 2013 , at
13 	which time the AIMS representatives expressed a preference for relocating to the
14 UNM north campus. The Commission moved to approve "the amendment presented
15 	by the Albuquerque Institute of Math and Science[,]" voted, and unanimously
16 	approved "the amendments presented." Following the amendment approval, the
17 AIMS school director reported to the AIMS board of trustees that UNM' s west
18 	campus was the "ideal" additional location and that the west campus had already
19 	been approved by the Commission, citing the location's inclusion in the amendment
20 proposal and the proposal ' s approval during the February 1, 2013 meeting.
3

1 {3} 	Believing the Commission had approved a new facility location on any of the
2 three campuses enumerated in the proposal during the February 1, 2013 meeting,
3 AIMS submitted a request "that the restrictions in Section 22-8B-4(L) be waived to
4 permit AIMS . . . to open a separate facility at a location on or near the UNM West
5 Campus within the boundaries of the Rio Rancho Public School District." Section
6 22-8B-4(L) provides that "a single charter school may maintain separate facilities at
7 two or more locations within the same school district[.]"' The request pointed to
8 language from the February 1, 2013 meeting and emphasized that AIMS had listed
9 the west campus 	in the approved proposal. The Secretary granted the waiver,
10 	permitting the second location in Rio Rancho and allowing two AIMS facilities to
11 	exist in two different school districts.2
12 	{4} 	Appellant filed a writ of certiorari against the Public Education Department
13 	(the Department), the Secretary, and the Commission (collectively, Appellees) in
14 district court, seeking review of the Secretary' s decision granting the waiver, arguing
15 	that the decision was arbitrary and capricious and exceeded the Secretary' s statutory
16 authority. The district court granted the writ, and AIMS intervened in the action.
1The Charter Schools Act is part of the Public School Code, NMSA 1978,
§§ 22-1-1 to -35-5 (1967, as amended through 2019).
2 The parties have assumed throughout that Section 22-8B-4(L) applies even
though AIMS does not seek to establish its second facility in the "same school
district" where its first facility is located. Because the parties do not dispute the issue,
we assume without deciding that Section 22-8B-4(L) applies.
4

1 After reviewing the record and hearing the parties' arguments, the district court
2 affirmed the Secretary' s decision to grant the waiver allowing the second AIMS
3 location in Rio Rancho. Appellant then petitioned for a writ of certiorari in this Court
4 pursuant to Rule 1-075 NMRA, which we granted.
5 DISCUSSION
6 {S} 	This case presents two questions: ( 1) whether the Secretary' s decision to grant
7 the waiver was arbitrary and capricious, supported by substantial evidence, and in
8 accordance with law; and, (2) whether the Public School Code authorized the
9 Secretary to waive a provision of the Charter Schools Act. We review the matter by
10 	applying the same standard of review used in the district court sitting in its appellate
11 	capacity and consider whether the agency acted arbitrarily or capriciously, whether
12 	the decision was supported by substantial evidence, whether the action was outside
13 	the scope of the agency's authority, and whether the action was in accordance with
14 	law. Rule l-075(R); Cavu Co. v. Martinez, 2013-NMCA-050,, 11 , 302 P.3d 126;
15 	see N.M Indu s. Energy Consume rs v. N.M Pub. Regulation Comm 'n, 2007-NMSC-
16 	053 , , 24, 142 N.M. 533 , 168 P.3d 105 ("The reviewing court needs to find evidence
17 that is credible in light of the whole record and that is sufficient for a reasonable
18 	mind to accept as adequate to support the conclusion reached by the agency."
19 (internal quotation marks and citation omitted)). Although we view the evidence in
20 the light most favorable to the agency' s decision, we will not uphold the decision if
5

1 it is not supported by substantial evidence. N.M Indus. Energy Consumers, 2007-
2 NMSC-053, 124.
3 	{6} 	Article 	XII, 	Section 	6, 	of 	the 	New 	Mexico 	Constitution 	creates 	the
4 Department with the Secretary acting as its head. N.M. Const. art. XII, § 6(A). The
5 Department has the authority to "a dopt, promulgate and enforce rules to exercise its
6 authority and the authority of the secretary" and to "wa ive provisions of the Public
7 School Code as authorized by law." Section 22-2-l( B)(l) , (4). As part ofits authority
8 to waive provisions of the Public School Code, the Legislature has specified that the
9 Department may waive "requirements of the Public School Code . .. that impede
10 	innovation in education," provided the waiver request comes from a school that
11 	exceeds educational standards and " is supported by the teachers at the requesting
12 	school and the requesting school's local school board." Section 22-2-2.l(B)(3). The
13 	Public School Code defines the term "local school board" as "the policy-setting body
14 	of a school district[.]" Section 22-l-2(H).
15 	{7} 	As part of the waiver request that AIMS submitted to the Secretary, AIMS
16 	included documents acknowledging the approval of the AIMS board of trustees and
17 the teachers at the school. The waiver request was not, however, accompanied by
18 	any documentation suggesting that either the local school board for Albuquerque or
19 	Rio Rancho supported granting the waiver. While the parties fail to address whether
20 the "local school board" in this instance would be the Albuquerque school board or
6

1 the Rio Rancho school board under the facts of this case, we need not decide that
2 issue, as AIMS failed to present evidence that either school board supported the
3 requested waiver. Appellant has made it clear that it does not support the waiver by
4 filing its petition, and there is no evidence in the record that AIMS sought the support
5 of the Board of Education of the Albuquerque Public Schools.
6 	{8} 	Appellees instead argue that as the head of the Department, the Secretary was
7 required to find that the "school board of the requesting school" supported the waiver
8 request. Section 22-2-2.l(B)(3), however, explicitly requires the support of "the
9 requesting school ' s local school board, " which Section 22 -l-2(H) defines as "the
10 	policy-setting body of a school district." And a "school district" is "an area of land
11 	established as a political subdivision of the state for the administration of public
12 	schools and segregated geographically for taxation and bonding purposes[.]" Section
13 	22-1-2(R). AIMS fails to explain how its board of trustees constitutes the "local
14 	school board" as defined in the Public School Act, such that the support of its board
15 	of trustees satisfied the statutory requirement that a waiver be supported by the local
16 	school board. "We will not review unclear arguments, or guess at what a party's
17 	arguments might be." Elane Photography, LLC v. Willock, 2013-NMSC-040, ~ 70,
18 	309 P.3d 53 (alteration, internal quotation marks, and citation omitted). "To rule on
19 an inadequately briefed issue, [the appellate court] would have to develop the
20 arguments itself, effectively performing the parties' work for them." Id. 	"This
7

1 creates a strain on judicial resources and a substantial risk of error. It is of no benefit
2 either to the parties or to future litigants for this Court to promulgate case law based
3 on our own speculation rather than the parties' carefully considered arguments." Id.
4 	{9} 	AIMS failed to proffer any evidence that a local school board supported its
5 waiver request, and it therefore failed to satisfy the requirements of Section 22-2-
6 	2. l(B)(3). In light of this deficiency in the evidence, we cannot conclude that
7 substantial evidence supports the Secretary' s grant of AIMS's waiver request. The
8 Secretary' s decision to grant the requested waiver was error. Given the dispositive
9 nature of our conclusion on this issue, we need not reach Appellant' s argument
10 	regarding whether the Secretary' s authority to waive provisions of the Public School
11 	Code extends to waiving the provisions of Section 22-8B-4 of the Charter School
12 	Code.
13 	CONCLUSION
14 	{to} 	We reverse and remand for proceedings consistent with this opinion.
15 	{II} 	IT IS SO ORDERED.
:~ 	J	(M(l;Jfm::
8

—

WE CONCUR:

‘ e y} o
TACOULLINE R. MEDINA, Judge

7

CHARY' A. REY, Judge