1

Certiorari Denied, January 19, 2012, No. 33,351

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-021

Filing Date: September 27, 2011

Docket No. 31,031

ROBIN WAKELAND,

Petitioner-Appellant,

v.

NEW MEXICO DEPARTMENT OF 

WORKFORCE SOLUTIONS and 

GILMAN LAW OFFICES, LLC,

Respondents-Appellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Alan M. Malott, District Judge

Robin Wakeland

Albuquerque, NM 

Pro Se Appellant

Gilman Law Offices, LLC

James K. Gilman

Albuquerque, NM 

for Appellee

Lucy Salsbury Payne

Albuquerque, NM 

for Appellee N.M. Department of Workforce Solutions

OPINION

VANZI, Judge.
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{1} Robin Wakeland’s uncertainty about the proper procedure for seeking appellate

review in this case caused her to file a notice of appeal and a docketing statement rather than

a petition for writ of certiorari. Because Wakeland’s docketing statement provides

information sufficient to evaluate it as a petition for writ of certiorari, we will accept it as a

non-conforming petition; however, the petition was untimely, and the fact that it was

untimely is a procedural defect that will only be excused in unusual circumstances.

Wakeland’s uncertainty about the proper procedure is not an unusual circumstance that will

excuse the late filing, so we deny her non-conforming petition as untimely. 

BACKGROUND

{2} Wakeland sought unemployment compensation benefits after she was fired from her

job. The New Mexico Department of Workforce Solutions (the Department) denied the

unemployment benefits based on evidence that Wakeland had been terminated because she

wilfully violated the terms and conditions of her employment. Wakeland appealed to the

district court pursuant to NMSA 1978, Section 51-1-8(N) (2004), which provides for an

appeal as of right to the district court by means of a petition for writ of certiorari that the

district court is required by statute to grant, so long as it is timely. The district court

affirmed in an order filed on December 22, 2010, and Wakeland appealed to this Court by

filing a notice of appeal in the district court on January 3, 2011, and a docketing statement

in this Court on January 28, 2011. 

{3} Because it appeared that Wakeland did not have an appeal as of right to this Court

and that she should have sought review by means of a petition for writ of certiorari, we asked

the parties to brief the question whether the procedural defects warranted either dismissal

of the appeal or denial of the non-conforming petition. 

DISCUSSION

Wakeland Is Not Entitled to an Appeal as of Right

{4} Wakeland asserts that she is entitled to an appeal as of right to this Court from the

district court’s decision affirming the Department. Our law is clear, however, that she is not.

In Section 51-1-8(N), the Legislature chose to provide an appeal as of right to the district

court from the Department’s decision. The Legislature did not provide for an appeal as of

right to this Court from the decision of the district court. Both Section 51-1-8(N) and Rule

1-077(L) NMRA, which govern unemployment compensation appeals, state that an

aggrieved party may appeal the district court’s order or judgment in accordance with the

Rules of Appellate Procedure. Rule 12-505 NMRA governs “review by the Court of

Appeals of decisions of the district court . . . from administrative appeals pursuant to . . .

Rule 1-077.” Rule 12-505(A)(1). Rule 12-505(B) requires a party to seek discretionary

review in this Court by means of a petition for writ of certiorari. 

{5} Wakeland raises a number of arguments in support of her claim that she must be

provided with an appeal as of right, even if Rule 12-505 is to the contrary. These include
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(1) an argument that our Supreme Court is without authority to issue a rule of procedure that

gives the Court of Appeals discretion to decline to review this matter on the merits; (2) an

argument that she is denied equal protection and due process by being limited to a petition

for writ of certiorari rather than being permitted the processes allowed for an appeal as of

right; and (3) an argument that by issuing an order in this case, this Court has already

assumed jurisdiction, such that it cannot now decline to review her appeal on its merits. We

have reviewed these arguments and conclude that Wakeland has not demonstrated that she

is entitled to an appeal as of right.

A Non-Conforming Document Will Be Accepted as a Petition for Writ of Certiorari if

the Document Provides Sufficient Information to Assess Its Merits as a Petition

{6} Because Wakeland is not entitled to an appeal to this Court as of right, she was

required to seek discretionary review by means of a petition for writ of certiorari. She did

not do so and instead filed a notice of appeal and a docketing statement. Wakeland asserts

that this Court should exercise its discretion to accept these non-conforming documents and

review her arguments on their merits.

{7} Generally, New Mexico courts have not been stringent about the form and content

requirements of documents filed in an effort to seek appellate review, so long as the

information provided in the non-conforming document is adequate to convey the basic intent

of the party filing the document. See Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814

P.2d 94, 98 (1991) (holding that a notice of appeal was effective despite its failure to meet

the requirements for form and content because it met the jurisdictional time and place of

filing requirements and the opposing party was not prejudiced by the defects in the notice);

Marquez v. Gomez, 111 N.M. 14, 15, 801 P.2d 84, 85 (1990) (holding that a docketing

statement was effective as a substitute for a notice of appeal where the docketing statement

was sufficient to convey the intent to appeal, it met the time and place of filing requirements

for a notice of appeal, and the opposing party was not prejudiced); Johnson v. Johnson, 74

N.M. 567, 569, 396 P.2d 181, 182 (1964) (holding that a motion for leave to appeal was

effective as a notice of appeal). This liberal approach has been adopted in order to further

a policy of hearing appeals on their merits rather than dismissing them on technical grounds.

See, e.g., Govich, 112 N.M. at 230, 814 P.2d at 98 (stating that the appellate court’s “policy

of facilitating the right of appeal by liberally construing technical deficiencies in a

[document] otherwise satisfying the time and place of filing requirements”). 

{8} Despite this liberal policy, in Roberson v. Board of Educ. of City of Santa Fe, 78

N.M. 297, 298-99, 430 P.2d 868, 869-70 (1967), our Supreme Court held that a notice of

appeal is not an adequate substitute for a petition for writ of certiorari. In Roberson, a

teacher was fired from her job by the board of education of the city of Santa Fe. Id. at 298,

430 P.2d at 869. The petitioner appealed to the state board of education, which affirmed.

Id. Although there was no statute or rule permitting an appeal from this decision, the

petitioner filed a notice of appeal with the district court. Id. The district court issued a writ

of certiorari to the state board. Id. The city and state boards of education filed a motion to

quash the writ and a motion to dismiss based on the petitioner’s improper filing of a notice

of appeal rather than a petition for writ of certiorari. Id. at 298-99, 430 P.2d at 869-70. The
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district court dismissed the matter because the petitioner was not entitled to an appeal as of

right, and she failed to present a proper petition for writ of certiorari. Id. at 299, 430 P.2d

at 870. The petitioner appealed to the New Mexico Supreme Court but never perfected the

appeal, so the matter was not reviewed at that time. Id. Then the petitioner filed a proper

petition for writ of certiorari in the district court, arguing that this petition related back and

was a continuation of the issues raised by her notice of appeal. Id. The district court again

dismissed, and the petitioner sought review in the New Mexico Supreme Court. Id.

{9} The Supreme Court held that the petitioner’s notice of appeal could not substitute for

a petition for writ of certiorari. Id. It stated that it was “amply clear” that “the notice of

appeal [was] not sufficient” because “a formal application showing a prima facie case for

relief is a prerequisite to issuance of certiorari” and a notice of appeal does not meet these

requirements. Id. at 300, 430 P.2d at 871 (internal quotation marks and citation omitted).

While the Court stated that it was not holding that “any particular nicety of pleading or

precision of drafting is required,” it would not construe the notice as a petition because “the

record here discloses a total absence of any pleading which remotely approximates a petition

or which contains any of the elements required as a minimum to merit such a description in

a proceeding wherein certiorari is sought.” Id. Accordingly, the Court concluded that the

petitioner’s later-filed petition for writ of certiorari did not revive the issues raised by the

notice of appeal since the notice itself did not properly bring the case before the district

court. Id. However, because at that time there was no statute or rule setting a time limit for

the filing of a petition for certiorari and because laches did not bar the filing of the petition

that the petitioner filed after she filed her improper notice of appeal, our Supreme Court held

that the petition was properly filed and should not have been dismissed. Id. at 300-03, 430

P.2d at 871-74. 

{10} Despite our Supreme Court’s decision in Roberson, this Court has issued several

opinions indicating that we may, in our discretion, elect to treat a timely filed notice of

appeal as a petition for writ of certiorari. In West Gun Club Neighborhood Ass’n v.

Extraterritorial Land Use Auth., 2001-NMCA-013, ¶ 3, 130 N.M. 195, 22 P.3d 220, this

Court chose to treat a notice of appeal filed within the then-twenty-day period for filing

petitions for writ of certiorari as a petition for such a writ. In doing so, West Gun Club relied

on Hyden v. New Mexico Human Servs. Dep’t., 2000-NMCA-002, 128 N.M. 423, 993 P.2d

740. Hyden, however, was not directly applicable since the issue in Hyden was about

timeliness, not about the form or content of the documents that were filed. Id. ¶ 4. In

Hyden, the question was whether unusual circumstances justified granting an extension of

time to file two petitions for writ of certiorari when the parties had failed to meet the time

of filing requirement that is a mandatory precondition to the exercise of this Court’s

jurisdiction. Id. ¶¶ 6-7, 14-15. Although the parties had filed notices of appeal, Hyden did

not hold that a notice of appeal would be accepted as a substitute for a petition for writ of

certiorari. In fact, the Court did not accept the notices filed in that case, but instead

permitted the parties an extension of time to file proper petitions. Id. ¶¶ 4, 18. 

{11} In Dixon v. State, Taxation & Revenue Dep’t., 2004-NMCA-044, ¶ 9, 135 N.M. 431,

89 P.3d 680, this Court accepted a timely notice of appeal as a substitute for a petition for

writ of certiorari without considering whether the notice substantially complied with the
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form and content requirements of Rule 12-505. In Dixon, two parties filed notices of appeal

within the then-twenty-day period for filing petitions for writs of certiorari. Id. ¶ 10.

Relying on Hyden, this Court imported the “unusual circumstances” test that is generally

employed when determining whether to accept an untimely filed notice of appeal or petition

for writ of certiorari and used it as part of the analysis for determining whether to accept a

document that was timely but improper in its form and content. Dixon, 2004-NMCA-044,

¶ 9. Dixon determined that “unusual circumstances” warranted accepting the notices of

appeal as petitions for writ of certiorari, where this Court had previously accepted notices

of appeal in lieu of petitions in past administrative appeals involving one of the parties. Id.

{12} Finally, in Glynn v. State, Taxation and Revenue Dep’t., 2011-NMCA-031, ¶ 11, 149

N.M. 518, 252 P.3d 742, cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520

(No. 32,862, Mar. 8, 2011), this Court again elected to accept a notice of appeal filed within

the then-twenty-day period for petitions for writ of certiorari as a substitute for a petition.

This Court did not expressly rely on the “unusual circumstances” test, but did state that it

would choose to accept the non-conforming document due to the “uncertainty regarding the

district court’s order and the uncertainty regarding the correct procedure for appealing a

district court’s decision involving both its appellate and original jurisdiction[.]” Id.

{13} Neither West Gun Club, Dixon, nor Glynn cited to Roberson. Although Roberson

did not discuss the effect of the filing of a non-conforming document that addresses the

merits of the issues raised on appeal, we conclude that Roberson is in fact controlling when

the only document filed is a notice of appeal. Further, we take this opportunity to clarify

West Gun Club, Dixon, and Glynn, and to explain that it is the docketing statement, not the

notice of appeal, that we may accept as a substitute for a petition for writ of certiorari.

{14} Roberson has not been overruled, and neither has it been abrogated by our Supreme

Court’s more recent cases setting forth a liberal policy for accepting notices of appeal that

are deficient as to form or content. Roberson simply holds that, because a notice of appeal

contains no information about the issues raised on appeal, it cannot substitute for a petition

for writ of certiorari since it does not substantially comply with the content requirements for

a petition. 78 N.M. at 300, 430 P.2d at 871. A petition must contain a statement of the

issues sought to be reviewed and a discussion of the facts material to the questions presented.

Rule 12-505(D)(2)(b) and (c). Furthermore, in order to warrant review, a petition must show

the existence of: (1) a conflict between the district court order and a prior appellate opinion

of either this Court or the Supreme Court; (2) a conflict between the district court order and

any statutory provision, ordinance, or agency regulation; (3) a significant question of law

under the New Mexico or United States Constitutions; or (4) an issue of substantial public

interest that should be determined by the court. Rule 12-505(D)(2)(d). “The critical issue

under [Rule 12-505(D)(2)(d)] is whether the case presents issues of significant importance

to justify the granting of a writ of certiorari[.]” Rio Grande Chapter of Sierra Club v. N.M.

Mining Comm’n, 2003-NMSC-005, ¶ 16, 133 N.M. 97, 61 P.3d 806. In contrast, there is

very little that is required to be included in a notice of appeal, see Rule 12-202 NMRA, such

that a notice of appeal will rarely demonstrate that discretionary appellate review is

warranted. 
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{15} In addition, the policy considerations that favor a liberal construction of a notice of

appeal are not at issue when a party seeks discretionary appellate review. A notice of appeal

is filed when a party is entitled to an appeal as of right. See Rule 12-202 (governing appeals

as of right from the district court); Rule 12-601 NMRA (governing appeals as of right from

administrative entities and special statutory proceedings). Under such circumstances, our

courts have expressed concern that a strict adherence to formal requirements might unduly

infringe on the absolute right to one appeal provided by Article VI, Section 2 of the New

Mexico Constitution. See Govich, 112 N.M. at 230, 814 P.2d at 98. But this concern is not

at issue here. Whether to grant a petition for writ of certiorari to review the district court’s

decision in an administrative appeal rests in the sound discretion of this Court. Paule v.

Santa Fe Cnty. Bd. of Cnty. Comm’rs, 2005-NMSC-021, ¶ 14, 138 N.M. 82, 117 P.3d 240.

Article VI, Section 2 only applies to appeals from the district court’s exercise of its original

jurisdiction. City of Las Cruces v. Sanchez, 2007-NMSC-042, ¶ 9, 142 N.M. 243, 164 P.3d

942. It does not apply to appeals to this Court from the district court’s decision on appeal

from an administrative agency ruling. See VanderVossen v. City of Espanola, 2001-NMCA016, ¶¶ 7-16, 130 N.M. 287, 24 P.3d 319 (explaining that the absolute right to one appeal

contained in Article VI, Section 2 of the New Mexico Constitution does not apply to review

by the Court of Appeals of a district court’s decision on appeal from an administrative

agency’s zoning decision). To the degree that the principle underlying Article VI, Section

2 might support acceptance of a notice of appeal in lieu of a petition for writ of certiorari,

the principle is not applicable here because the parties have already had an appeal as of right

to the district court. Cf. Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t,

2010-NMSC-034, ¶¶ 17, 19, 148 N.M. 692, 242 P.3d 259 (applying the policy established

in Article VI, Section 2 to an appeal from a workers’ compensation decision to the Court of

Appeals, even though a workers’ compensation proceeding is a special statutory proceeding

that does not originate in the district court).

{16} Although a notice of appeal contains almost no substantive information related to a

party’s claims of error, a docketing statement is quite different. A docketing statement must

contain a statement of the nature of the proceeding, a statement of the issues presented by

the appeal, a summary of all facts material to a consideration of the issues, and a list of

authorities supporting each claim of error, among other information. Rule 12-208(D)

NMRA. If a docketing statement complies with these requirements, this Court should

generally be able to assess whether the issues raised meet one of the four criteria for granting

a petition for writ of certiorari pursuant to Rule 12-505(D)(2)(d). Furthermore, because the

filing of the docketing statement triggers the filing of the record proper, Rule 12-209(B)

NMRA, this Court will generally have access to the materials that must be attached to a

petition for writ of certiorari. See Rule 12-505(D)(3) (stating that a petition shall have

attached the final order or judgment of the district court and any findings or decisions

leading to the order or judgment, a copy of the administrative decision, and a copy of the

statements of appellate issues filed in the district court). Accordingly, although Roberson

generally precludes the acceptance of a notice of appeal in lieu of a petition for writ of

certiorari, it does not preclude our acceptance of a docketing statement. A docketing

statement will generally substantially comply with Rule 12-505 so as to permit this Court

to review it as a substitute for a petition for writ of certiorari under a liberal standard of

construing documents in order to reach their merits. 
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{17} We recognize that there is some degree of unfairness in accepting a non-conforming

document such as a docketing statement in lieu of a petition for writ of certiorari. For

instance, a docketing statement has no page or type-volume limitations, whereas a petition

for writ of certiorari does. Compare Rule 12-208, with Rule 12-505(E). Furthermore, the

filing of a notice of appeal and a docketing statement incorrectly suggests to this Court that

an appeal is as of right, whereas a petition for writ of certiorari alerts the Court to the fact

that its review is discretionary. However, we do not believe that these possible inequities

warrant the rejection of a non-conforming document that, liberally construed, substantially

complies with Rule 12-505. To the degree that an opposing party believes it may be

prejudiced by the filing of a docketing statement or other non-conforming document when

a petition for writ of certiorari is the appropriate means for seeking appellate review, that

party is permitted to file a motion with this Court to require the party seeking review to file

a proper petition for writ of certiorari; it can file a notice with this Court to alert the Court

to the fact that the appeal is not as of right; it can file a response to what may otherwise be

construed as a petition explaining why the writ should not be granted; or it can do any

combination of these. See Rule 12-309 NMRA (setting out the requirements for motions

filed in this Court); Rule 12-505(I) (permitting a response to a petition for writ of certiorari).

A Non-Conforming Petition for Writ of Certiorari Must Meet the Timeliness

Requirement of Rule 12-505(C), and an Untimely Filing Will Only Be Excused in

Unusual Circumstances

{18} Our Supreme Court has held that the time requirement for filing a petition for writ

of certiorari is a mandatory precondition to the exercise of an appellate court’s jurisdiction

to review a petition on its merits. See Gulf Oil Corp. v. Rota-Cone Field Operating Co., 85

N.M. 636, 636, 515 P.2d 640, 640 (1973) (per curiam) (holding that, as with the time

requirement for a notice of appeal, the timely filing of a petition for writ of certiorari is a

mandatory precondition to the exercise of an appellate court’s jurisdiction that will not be

excused absent unusual circumstances). Therefore, a non-conforming document such as a

docketing statement must be filed within thirty days of the order to be reviewed, as is

required for a petition. See Rule 12-505(C) (stating that a petition for writ of certiorari must

be filed with the clerk of this Court within thirty days of the entry of the final action of the

district court). When a party seeks to benefit from this Court’s willingness to consider a

docketing statement as a substitute for a petition for writ of certiorari, the party often will

not meet this requirement due to the differences between the procedural rules governing an

appeal as of right and the rules governing discretionary review. The time for filing the

docketing statement in this Court is triggered by the filing of a notice of appeal. See Rule

12-208(B) (stating that the docketing statement shall be filed within thirty days after the

filing of the notice of appeal). The notice of appeal must generally be filed within thirty

days of the judgment or order appealed from. See Rule 12-201(A)(2) NMRA. Therefore,

a party who erroneously files a notice of appeal and docketing statement instead of a petition

for writ of certiorari is likely to miss the thirty-day requirement of Rule 12-505(C), even

though the notice of appeal and docketing statement would have been timely if the appeal

were as of right. 
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{19} In those unusual cases where a party happens to file both the notice of appeal and the

docketing statement early so that the docketing statement is filed in this Court within thirty

days of the district court’s order and therefore meets the time requirement of Rule 12-

505(C), this Court will construe the docketing statement as a petition for writ of certiorari

without requiring any showing of unusual circumstances, since the non-conforming

document is timely and substantially complies with the content requirements of Rule 12-505

under a liberal interpretation. This approach is consistent with the policy of not exalting

form over substance when the mandatory preconditions to the exercise of this Court’s

jurisdiction have been met. See Govich, 112 N.M. at 230, 814 P.2d at 98. 

{20} But consistent with the rule that a timely filing of a petition for writ of certiorari is

a mandatory precondition to the exercise of this Court’s jurisdiction, in those cases in which

a docketing statement is not filed in this Court within thirty days of the district court’s order

or judgment, this Court will not excuse the untimely filing of the non-conforming document

absent a showing of the kind of unusual circumstances that would justify an untimely

petition. See Gulf Oil Corp., 85 N.M. at 636, 515 P.2d at 640 (refusing to excuse the late

filing of a petition for writ of certiorari where there were no unusual circumstances justifying

the untimely filing). Our Supreme Court has explained that it is “[o]nly the most unusual

circumstances beyond the control of the parties—such as error on the part of the court,” that

will warrant overlooking the requirement that a document must be timely filed as a

mandatory precondition to the exercise of a court’s jurisdiction. See Trujillo v. Serrano, 117

N.M. 273, 278, 871 P.2d 369, 374 (1994) (holding that there would be unusual

circumstances to excuse the late filing of a notice of appeal to the district court if the

untimely filing was caused by the magistrate court and remanding for a finding of fact on

this issue). Our Supreme Court has also held that unusual circumstances may warrant

waiving the mandatory timeliness requirement when the filing is not very late, and there are

other unusual circumstances that were not caused by the court system but that were not

within the control of the party seeking appellate review. See Chavez v. U-Haul Co.,

1997-NMSC-051, ¶¶ 19-22, 124 N.M. 165, 947 P.2d 122 (hearing an appeal when the notice

was filed fifty-eight minutes late, the appellant filed the notice pro se, his trial counsel had

been in the process of arranging for substitute counsel, and after trial it was not clear which

attorney would be responsible for prosecuting the appeal); see also Schultz,

2010-NMSC-034, ¶ 21 (holding that unusual circumstances required excusing the mandatory

timeliness requirement where the notice of appeal was received two days late because the

appellant had mailed the notice four days prior to the due date, and the fact that the United

States Postal Service took more than four days to deliver the document from Albuquerque

to Santa Fe was an unusual circumstance outside of the appellant’s control).

{21} Although we may have applied the unusual circumstances test more liberally than

this in Dixon and, arguably, in Glynn, that is because in both of those cases, we considered

the relevant non-conforming document to have been timely filed, and we therefore only

determined whether to accept a timely document that was improper as to form. As we have

clarified in this opinion, a non-conforming document that substantially complies with Rule

12-505 will be accepted as a petition for writ of certiorari without a showing of unusual

circumstances. It is only when the non-conforming document does not meet the mandatory
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timeliness requirement of Rule 12-505 that the stringent unusual circumstances standard

comes into play. 

{22} In considering whether to exercise this Court’s discretion to waive the mandatory

timeliness requirement for a late, non-conforming document that is to be construed as a

petition for writ of certiorari, this Court is mindful of the fact that, unlike cases in which a

party has an appeal as of right, review in this Court of the district court’s order on appeal

from an administrative agency is discretionary. Paule, 2005-NMSC-021, ¶ 14. Because

Article VI, Section 2 of the New Mexico Constitution does not apply to appeals to this Court

from the district court’s decision on appeal from an administrative agency ruling, see

VanderVossen, 2001-NMCA-016, ¶¶ 7-16, and because the parties have already had an

appeal as of right, we need not consider the policy of a party’s absolute right to one appeal

in determining whether unusual circumstances warrant accepting an untimely document

when a timely petition for writ of certiorari should have been filed. Cf. Schultz, 2010-

NMSC-034, ¶¶ 19, 21. 

Wakeland’s Non-Conforming Petition for Writ of Certiorari Was Late, and No

Unusual Circumstances Excuse the Late Filing 

{23} Because Wakeland’s docketing statement contains information that is sufficient to

determine whether the issues she raises meet the requirements for granting a petition for writ

of certiorari, we construe her docketing statement as a petition. However, because her nonconforming petition was not filed within thirty days of the district court’s order, this Court

will excuse the late filing only if it was due to unusual circumstances beyond her control. 

{24} Wakeland filed her notice of appeal and docketing statement well within the

deadlines provided under Rules 12-201 and 12-208. Wakeland argues that she should be

excused for following those rules, rather than Rule 12-505, because she was not on notice

that Rule 12-505 applied. Wakeland points out that nothing in Section 51-1-8 or Rule 1-077

specifically refers to Rule 12-505. 

{25} Simply being confused or uncertain about the appropriate procedure for seeking

review is not the sort of unusual circumstance beyond the control of a party that will justify

an untimely filing. See Trujillo, 117 N.M. at 278, 871 P.2d at 374 (stating that “[o]nly the

most unusual circumstances beyond the control of the parties—such as error on the part of

the court[,]” will warrant overlooking the requirement that a document must be timely filed

as a mandatory precondition to the exercise of a court’s jurisdiction). But see Glynn, 2011-

NMCA-031, ¶ 11 (finding unusual circumstances based on a party’s uncertainty about the

proper procedure for seeking review where the relevant document was considered to have

been timely filed and the only question was whether unusual circumstances excused the

filing of a document was non-conforming as to form and content). In very limited

circumstances, this Court has held that uncertainty in the law will excuse the late filing of

a petition. In Hyden, we held that unusual circumstances excused the late filing of two

petitions for writ of certiorari where the law was so uncertain that the uncertainty essentially

rose to the level of court-created error. 2000-NMCA-002, ¶¶ 14-17. There, the Legislature

had enacted a comprehensive statute that significantly changed the way appeals could be
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taken from certain administrative agency decisions. Id. ¶ 2. The newly-enacted statute

provided for a direct appeal to the district court and for discretionary review in the Court of

Appeals by means of a petition for writ of certiorari. Id. The statute, however, provided no

deadline within which to file a petition and stated that the relevant procedure would be

“governed by rules adopted by the Supreme Court.” Id. ¶ 17. The court rule, which

contained the time for filing, was not enacted until several months later, and it was not

published in the most readily available legal sources. Id. We view Hyden as applicable to

those limited circumstances where the legal uncertainty involves a sea change in the relevant

procedure and where the uncertainty relates to the time of filing itself—a situation that does

not exist here. Wakeland does not assert that she was unaware of the time for filing a

petition for writ of certiorari; instead, she contends that she did not know that she was

supposed to file such a petition. The fact that Wakeland did not know that any further

appellate review would be governed by Rule 12-505 does not excuse the late filing in this

case. 

{26} We note that any uncertainty about whether review in this Court should be had as an

appeal as of right or pursuant to discretionary review can always be addressed by filing both

a timely notice of appeal in the district court and a timely petition for writ of certiorari in this

Court. The party seeking review is free to explain the basis of their uncertainty about the

proper procedure in their petition and to inform this Court that a notice of appeal has been

timely filed in the district court. In the event the Court determines that the appeal, or some

portion of the appeal, is of right, the party can request that the Court enter an order

construing the petition as a docketing statement for those issues that are appealed as of right.

CONCLUSION

{27} Wakeland’s non-conforming petition for writ of certiorari was not filed within thirty

days of the district court’s order and was therefore untimely. As her uncertainty about the

proper procedure for seeking review is not an unusual circumstance that will excuse the late

filing, we deny the petition. 

{28} IT IS SO ORDERED.

____________________________________

LINDA M. VANZI, Judge

WE CONCUR:

____________________________________

CELIA FOY CASTILLO, Chief Judge

____________________________________

CYNTHIA A. FRY, Judge 

Topic Index for Wakeland v. NM Dept of Workforce Solutions, No. 31,031
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AE APPEAL AND ERROR

AE-CF Certiorari

AE-DS Docketing Statements

AE-NA Notice of Appeal

AE-TA Timeliness of Appeal

EL EMPLOYMENT LAW

EL-TE Termination of Employment

EL-UC Unemployment Compensation

PA PUBLIC ASSISTANCE

PA-UC Unemployment Compensation