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FILED IN MY OFFICE

DISTRICT COURT CLERK


9/27/2017 2:26:57 PM
STEPHEN T. PACHECO
Veronica Rivera

STATE OF NEW MEXICO


COUNTY OF SANTA FE
FIRST JUDICIAL DISTRICT

STATE OF NEW MEXICO ex rel.


NEW MEXICO LEGISLATIVE COUNCIL,

Petitioner,

v. No. D-101-CV-2017-01550

HONORABLE SUSAN MARTINEZ,


Governor of the State of New Mexico, and
HONORABLE MAGGIE TOULOUSE OLIVER,
Secretary of State,

Respondents.

ORDER DENYING STAY PENDING APPEAL

This matter is before the Court on Respondent Governor Martinezs Motion to Stay

Permanent Writ of Mandamus Pending Appeal. The Court has determined that a hearing is

unnecessary. The Court in its discretion may rely upon the pleadings filed in this matter if the

written submissions are sufficient to resolve the matters presented. See National Excess

Insurance Co. v. Bingham, 1987-NMCA-109, 9, 106 N.M. 325, 742 P.2d 537 (recognizing

motions may be resolved by the district court without oral argument provided there is an

adequate opportunity for written response to the arguments presented); Flagstar Bank v. Licha,

2015-NMCA-086, 28 & 29, 356 P.3d 1102 (stating no authority requires district court to hold

a hearing on motions). See also LR 1-201(E).

Rule 1-062(E) NMRA states: When an appeal is taken by the state or an officer or

agency thereof, or by direction of any department of the state, or by any political subdivision or

institution of the state, or by any municipal corporation, the taking of an appeal shall, except as

provided in Paragraphs A and C of this rule, operate as a stay. Paragraph C provides in part:
In all actions of contested elections, mandamus, removal of public officers, quo warranto or

prohibition, it shall be discretionary with the court rendering judgment to allow a supersedeas of

the judgment, and if the appeal is allowed to operate as a supersedeas it shall be upon such terms

and conditions as the court deems proper. Thus, there is not an automatic stay of the writ of

mandamus pending appeal in this matter; a stay is within the discretion of the Court.

The burden is upon the party seeking a stay to show good cause for the stay. State v. Doe,

1984-NMCA-083, 7, 103 N.M. 30, 702 P.2d 350. While Tenneco Oil Co. v. New Mexico Water

Quality Control Comn, 1986-NMCA-033, 105 N.M. 708, 736 P.2d 986, decided the standards

governing the granting of a stay of administrative agency action pending an appeal in the

absence of a statute or rule on stay in that circumstance, the standards adopted offer guidance to

the Court on the exercise of the discretion granted by Rule 1-062(C).

The likelihood of success on appeal weighs against the issuance of the stay. The public

interest in giving force to the State Constitution and its provisions governing the roles of the

Legislature and the Governor in the enactment of legislation also weighs against the stay. The

Court has considered the arguments of harm presented by the Respondent, but cannot conclude

irreparable harm will result if a stay is not granted. The possible harms are no different than

what may occur when laws are repealed or amended in subsequent legislative sessions or when a

court finds a statute unconstitutional after its implementation. Implementation of the bills during

the pendency of the appeal will not result in mooting the appeal as in Mossman v. Banatex, LLC,

440 S.W.3d 835 (Tex. App. 2013), cited by Respondent.

IT IS THEREFORE ORDERED that Respondent Governor Martinezs motion for a stay

of the writ of mandamus pending appeal is denied.


____________________________________
Sarah M. Singleton, Judge Pro Tem, Div. II
Sitting by Designation
4DPL

On the date of acceptance for efiling copies of the above order were eserved on those registered
for eservice.