[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0019](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0019LOPS.doc)

[Link to
GCH-0021](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0021LOPS.doc)

[Link to
GCH-0022](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0022LOPS.doc)

Legal Opinion: GCH-0023

Index: 2.245

Subject: PH Due Process Determination: New Mexico

December 3, 1991

Honorable Bruce King

Governor of New Mexico

Santa Fe, NM 87501

Dear Governor King:

I am happy to advise you of a new public housing \"due

process determination\" for the State of New Mexico.

Under Federal law, if the Secretary of the Department of

Housing and Urban Development (HUD) determines that law of the

jurisdiction requires a pre-eviction court hearing with the

basic \"elements of due process\" (42 U.S.C. 1437d (k), as amended

in 1990), a public housing agency (PHA) is not required to

provide an administrative grievance hearing before evicting a

public housing tenant for:

1\. Any criminal activity that threatens the health,

safety, or right to peaceful enjoyment of the premises

of other tenants or employees of the PHA; or

2\. Any drug-related criminal activity on or near such

premises.

In accordance with the law, HUD has recently issued a

regulation which revises HUD\'s definition of due process

elements at 24 CFR 966.53(c) (56 Federal Register 51560,

October 11, 1991).

Pursuant to the revised regulation, HUD has determined that

the law governing a summary action for possession in the New

Mexico district and magistrate courts requires that the tenant

have the opportunity for a pre-eviction hearing in court

containing the elements of due process as defined in 24 CFR

966.53(c) of the HUD regulations. The basis of this

determination is explained in the legal analysis enclosed with

this letter.

In accordance with HUD\'s determination, a PHA operating

public housing in the State of New Mexico may exclude from its

administrative grievance procedure any grievance concerning an

eviction or termination of tenancy which involves any criminal

activity that threatens the health, safety, or right to peaceful

enjoyment of the premises of other tenants or employees of the

PHA, or any drug-related criminal activity on or near such

premises.

When a PHA evicts a tenant pursuant to a New Mexico summary

2

action for possession in the district or magistrate court, for

the reasons set forth above, the PHA is not required to afford

the tenant the opportunity for an administrative hearing on the

eviction under 24 CFR Part 966, and may evict a public housing

tenant pursuant to a decision in such judicial action.

Very sincerely yours,

Jack Kemp

Enclosure

HUD DUE PROCESS DETERMINATION

for the

STATE OF NEW MEXICO

TABLE OF CONTENTS

I. Jurisdiction

II\. Elements of Due Process

III\. Overview of New Mexico Eviction Procedures

IV\. Analysis of New Mexico Eviction Procedures for

Each of the Regulatory Due Process Elements

V. Conclusion

ANALYSIS

I. Jurisdiction: State of New Mexico.

II\. Elements of Due Process.

Section 6(k) of the United States Housing Act of l937 (42

U.S.C. 1437d(k), as amended by section 503(a) of the National

Affordable Housing Act of 1990, Pub. L. 101-625, approved

November 28, 1990), provides that:

For any grievance concerning an eviction or termination of

tenancy that involves any criminal activity that threatens

the health, safety, or right to peaceful enjoyment of the

premises of other tenants or employees of the public housing

agency or any drug-related criminal activity on or near such

premises, the agency may . . . exclude from its grievance

procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing

in court which the Secretary determines provides the basic

elements of due process . . .

The statutory phrase, \"elements of due process,\" is defined

by HUD at 24 CFR 966.53(c) as:

. . . an eviction action or a termination of tenancy in a

State or local court in which the following procedural

safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

\(3\) Opportunity for the tenant to refute the evidence

presented by the PHA including the right to confront

and cross-examine witnesses and to present any

New Mexico Due Process Determination

affirmative legal or equitable defense which the tenant

may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures

satisfy this regulatory definition is called a \"due process

determination.\" The present due process determination is based

upon HUD\'s analysis of the laws of the State of New Mexico to

determine if a summary action for possession requires a hearing

which comports with all of the regulatory \"elements of due

process,\" as defined in 966.53(c).

HUD finds that the requirements of New Mexico law governing

a summary action for possession in the district and magistrate

courts under New Mexico Statutes Annotated include all of the

elements of basic due process, as defined in 24 CFR 966.53(c).

This conclusion is based upon requirements contained in the New

Mexico statutes, case law and court rules.

III\. Overview of Eviction Procedures in the State of New Mexico.

In New Mexico, a tenant may be evicted in a summary action

for possession under the Uniform Owner-Resident Relations Act

(Sections 47-8-1 to 47-8-51 New Mexico Statutes Annotated 1978)

(NMSA 1978). As used in the Uniform Owner-Resident Relations Act

the term \"action\" \"includes . . . any . . . proceeding in which

rights are determined, including an action for possession.\"

Under the Uniform Owner-Resident Relations Act (Section 47-8-10

NMSA 1978) the district and magistrate courts have jurisdiction

over a summary action for possession.

In addition to specific rules governing possessory actions

under the Uniform Owner-Resident Relations Act, proceedings in

the district court are also governed by the \"Rules of Civil

Procedure for the District Courts,\" and in the magistrate court

by the \"Rules of Civil Procedure for the Magistrate Courts.\" 1

SCRA Rule 1-001 for the district court states that:

these rules govern the procedure in the district courts of

New Mexico in all suits of a civil nature . . . except to

the extent that . . . existing rules applicable to special

1New Mexico rules of civil procedure are contained in the

New Mexico Supreme Court Rules of Civil Procedure Annotated

(SCRA), which is divided into separate rules for the district,

magistrate, metropolitan and municipal courts of New Mexico.

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New Mexico Due Process Determination

statutory or summary proceedings are inconsistent herewith

(emphasis added).

An action for possession under the Uniform Owner-Resident

Relations Act is a summary proceeding within the meaning of SCRA

Rule 1-001. Thus in some instances (e.g., the time to answer a

complaint) the procedural rules of the Act, and not the rules of

civil procedure, govern in the district court. (See Holman v.

Oriental Refinery, 75 N.M. 52, 400 P.2d 471 (1965), in which the

court found that in a special statutory proceeding where existing

rules are inconsistent with the rules of civil procedure, the

special statutory proceeding is specifically excepted from the

operation of inconsistent requirements in the district court

rules of civil procedure.)

In the rules of civil procedure for the magistrate courts,

there is no provision similar to that in SCRA 1-001. SCRA

Rule 2-101(A) states that \"these rules shall govern the civil

procedure in all magistrate courts.\" However, it appears that

requirements for a possessory action under the Owner-Resident

Relations Act would override inconsistent requirements of the

general rules of civil procedure for the magistrate court.

New Mexico Constitution \-- Due Process Clause.

The New Mexico State Constitution (Article II, Section 18)

contains a due process clause in the same language as the due

process requirement of the Federal Constitution:

No person shall be deprived of life, liberty, or property

without due process of law . . .

IV\. Analysis of New Mexico Eviction Procedures for Each of the

Regulatory Due Process Elements.

A. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction

(24 CFR 966.53(c)(l)).

Under the Uniform Owner-Resident Relations Act, notice

requirements, with specific time limits, are specified for a

termination of the rental agreement because of breach of the

agreement, or other tenant acts or omissions.

Section 47-8-33(A) NMSA 1978 provides that:

. . . upon the initial material noncompliance by the

resident with the rental agreement . . . the owner may

deliver a written notice to the resident specifying the acts

3

New Mexico Due Process Determination

and omissions constituting the breach and that the rental

agreement will terminate upon a date not less than seven

days after receipt of the notice if the breach is not

remedied in seven days. Upon the second material breach,

the owner may deliver a written notice to the resident

specifying the acts and omissions constituting the breach

and that the rental agreement shall terminate upon a date

not less than seven days after receipt.

Section 47-8-13 NMSA 1978 states that a person has notice of

a fact if the person has actual notice, has received notice or

notification of it, or from all facts and circumstances known to

the person has reason to know it exists. A resident receives

notice if it is \"delivered in hand . . . or mailed to the person

at the place held out by him as the place for receipt of

communication, or . . . to his last known place of residence\"

(Section 47-8-13 NMSA 1978).

If a tenant remains in possession after expiration of the

term of the rental agreement, the owner may bring an action for

possession (Section 47-8-37 NMSA 1978). An action for possession

may also be brought by the owner for breach of the rental

agreement. (Section 47-8-40 NMSA 1978).

An action for possession is initiated by filing a petition

for restitution in district or magistrate court. The \"petition\"

(or \"complaint\")2 shall state:

the facts, with particularity . . . a reasonably accurate

description of the premises; and the requisite compliance

with the notice provision of the Uniform Owner-Resident

Relations Act 47-8-1 to 47-8-51 NMSA 1978 .

Section 47-8-43 NMSA 1978 provides that once the complaint is

filed, a summons is issued and is served on the defendant/tenant

with a copy of the petition. The summons states the cause of the

complaint, and notice that if the defendant fails to appear

judgment shall be entered against the defendant. Section 47-8-43

NMSA 1978 of the Uniform-Resident Relations Act provides that a

trial of an action for possession shall be not less than seven

nor more than ten days after service of summons.

2The Uniform Owner-Resident Relations Act uses the term

\"petition\" while the rules of civil procedure for both the

district and magistrate courts use the term \"complaint.\" Both

terms refer to the pleading filed in either the district or

magistrate court to commence an action. (Section 47-8-42 NMSA

1978, SCRA Rules 1-003 and 2-201). The term complaint is used in

this analysis.

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New Mexico Due Process Determination

The rules of civil procedure for the district court (SCRA

Rule 1-008) provides that a pleading shall contain:

. . . a short and plain statement of the claim showing that

the pleader is entitled to relief, and a demand for the

relief to which he deems himself entitled.

Upon the filing of the complaint in the district court, a

summons is issued. A copy of the summons with a copy of the

complaint attached are served together. A summons may be served

personally, or if the defendant refuses to receive it, by leaving

a copy at the place where the defendant is found. Service may

also be made by leaving a copy with a person at least fifteen

\(15\) years of age who resides at the defendant\'s dwelling or

usual place of abode, or by posting or mail (SCRA Rule 1-004).

The rules of civil procedure for the magistrate court

provide that \"a civil action is commenced by filing . . . a

complaint consisting of a written statement of a claim or claims

setting forth briefly the facts and circumstances giving rise to

the action\" (SCRA Rule 2-201).

SCRA Rule 2-202 provides that upon the filing of a complaint

in the magistrate court, a summons is issued directing the

defendant to file an answer and appear in court within twenty

days from the date the summons is served. If service is by mail,

three (3) days are added to the time for answer. Service may be

made personally, by leaving a copy with a person at least fifteen

\(15\) years of age residing at the defendant\'s dwelling or last

place of abode, by posting, or by mail.

The due process clause of the New Mexico Constitution

(Article II, Section 18) also guarantees adequate notice. In

State ex rel. Reynolds v. Lewis, 84 N.M. 768, 508 P.2d 577

(1973), the Supreme Court of New Mexico found that due process

requires that all who may be bound or affected by a decree are

entitled to notice and hearing, so that they have their day in

court.

In view of the above, New Mexico law provides adequate

notice of the grounds for eviction.

B. Right to be represented by counsel

(24 CFR 966.53(c)(2)).

There is an implied right to counsel in eviction proceedings

in the district court - e.g., SCRA Rule 1-005 (service and filing

of pleadings), SCRA Rule 1-011 (signing of pleadings, motions and

other papers; sanctions), and Section 47-8-48 NMSA 1978

5

New Mexico Due Process Determination

(prevailing party\'s rights in lawsuit, right to attorney\'s

fees)).

In the magistrate court, the rules of civil procedure

specifically afford a party the right to be represented by

counsel. SCRA Rule 2-107 provides that \"a party may appear,

prosecute, defend and appeal any proceeding by an attorney.\"

The State due process clause guarantees the right to counsel

for eviction proceedings in district or magistrate court (Article

II, Section 18).

C. Opportunity for the tenant to refute the evidence

presented by the PHA, including the right to confront

and cross-examine witnesses (24 CFR 966.53(c)(3)).

A party\'s right to refute evidence of the opposing party,

including the right to confront and cross-examine witnesses is

implied by the rules of procedure and the rules of evidence

governing possessory actions in the district or magistrate court.

The rules of civil procedure in the district court make

reference to cross-examination of witnesses with respect to

limiting one counsel on a side the right to examine or cross-

examine (SCRA 1-040(B)(7)).

SCRA Rule 1-030 for the district court provides that:

after commencement of the action, any party may take the

testimony of any person, including a party, by deposition

upon oral examination . . . Examination and cross-

examination of witnesses may proceed as permitted at trial

under the New Mexico Rules of Evidence.

SCRA Rule 1-032 for the district court permits the use of

depositions at trial, so far as admissible under the rules of

evidence, against any party who was present or represented at the

taking of the deposition for the purpose of contradicting or

impeaching the testimony of a deponent as a witness.

The rules of civil procedure for the magistrate court

provide that \"each party shall be permitted to present his

position amply and fairly\" (SCRA 2-601).

The rules of evidence (SCRA Rule 11-607) provide that \"the

credibility of a witness may be attacked by any party . . .\" The

rules of evidence also provide that the credibility of a witness

may be attacked or supported by evidence (SCRA 11-608). In New

Mexico, the courts have held that the right to impeach a witness

is basic to fair trial (see Mac Tyres, Inc. v. Vigil,

6

New Mexico Due Process Determination

92 N.M. 446, 589 P.2d 1037 (1979)).

In the district court a subpoena may be issued to:

command each person to whom it is directed to attend and

give testimony and to . . . command the person to whom

it is directed to produce books, papers or documents or

other tangible things . . . (SCRA Rule 1-045).

In the magistrate court a subpoena may command attendance of

witnesses and the production of documentary evidence (SCRA Rule

2-502).

The due process clause of the New Mexico Constitution

guarantees a party the opportunity to refute an opposing party\'s

evidence. In In re Downs, 82 N.M. 319, 481 P.2d 107 (1971), the

court held that due process insures that a litigant will have a

chance to present litigant\'s side of a case. See also In re

Miller, 88 N.M. 492, 542 P.2d 1182 (Ct. App.), cert denied,

89 N.M. 5, 546 P.2d 70 (1975), in which the court found that

embodied in the term \"procedural due process\" is the opportunity

to be heard and to present any defense.

D. Opportunity to present any affirmative legal or

equitable defense which the tenant may have

(24 CFR 966.53(c)(3)).

Section 47-8-45 NMSA 1978 of the Uniform Owner-Resident

Relations Act provides that \"on or before the day fixed for his

appearance, the defendant may appear and answer and assert any

legal or equitable defense . . .\" (emphasis added).

In the district court the rules provide that a defendant may

assert defenses. SCRA Rule 1-008 states that a party shall:

state in short and plain terms his defenses to each claim

asserted and shall admit or deny the averments upon which

the adverse party relies.

SCRA Rule 1-008 further states that in pleading to a \"preceding

pleading\" a party shall:

set forth affirmatively accord and satisfaction, arbitration

and award, contributory negligence, discharge in bankruptcy

duress . . . and any other matter constituting an avoidance

or affirmative defense.

In the magistrate court, upon service of the summons and

complaint the defendant may answer. The defendant\'s answer

shall:

7

New Mexico Due Process Determination

describe in concise and simple language the reasons why the

defendant denies the claim of the plaintiff as well as any

defenses he may have to the claim of the plaintiff (SCRA

Rule 2-302(B)).

E. A decision on the merits (24 CFR 966.53(c)(4)).

Section 38-1-1 NMSA 1978 states that the rules of civil

procedure for the district court and magistrate court are for the

\". . . purpose of simplifying and promoting the speedy

determination of litigation upon its merits.\" The incidents of a

possessory action under the Uniform Owner-Resident Relations Act,

the applicable civil procedure rules and the rules of evidence

are designed to lead to a decision on the merits, based on the

application of the law to the facts presented at trial. The

right to a decision on the merits is also guaranteed by the due

process clause of the New Mexico Constitution (Article II,

Section 18).

V. Conclusion.

New Mexico law governing a summary action for possession in

the New Mexico district and magistrate courts under the New

Mexico Statutes Annotated requires that the tenant have the

opportunity for a pre-eviction hearing in court which provides

the basic elements of due process as defined in 24 CFR

966.53(c) of the HUD regulations.

By virtue of this due process determination by HUD under

section 6(k) of the U.S. Housing Act of l937, a PHA in New Mexico

may evict a tenant pursuant to a decision by the district or

magistrate court in a summary action for possession for any

grievance involving any criminal activity that threatens the

health, safety, or right to peaceful enjoyment of the premises of

other tenants or employees of the PHA or any drug-related

criminal activity on or near such premises, and is not required

to first afford the tenant the opportunity for an administrative

hearing on the eviction.

8