source: Caselaw Access Project

author: VANZI, Judge.

license: Public Domain

text:
    STATE of New Mexico, Plaintiff-Appellant, v. Brian ADAMS, Defendant-Appellee.
    No. A-1-CA-36506
    Court of Appeals of New Mexico.
    Filing Date: May 21, 2019 Certiorari Granted, August 9, 2019, No. S-1-SC-37722
    Hector H. Balderas, Attorney General, Santa Fe, NM, John Kloss, Assistant Attorney General, Albuquerque, NM, for Appellant
    Bennett J. Baur, Chief Public Defender, Santa Fe, NM, John Bennett, Assistant Appellate Defender, Albuquerque, NM, for Appellee
   VANZI, Judge.

{1} This interlocutory appeal arises from the district court's order excluding the results of Defendant Brian Adams' blood test on the basis that the individual who drew his blood was not authorized to do so under the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 2015). On appeal, the State contends that the district court abused its discretion in excluding the blood test results because the person who drew the blood was an emergency medical technician (EMT) whose additional training and experience qualified her to draw blood. We first hold that the State properly took this interlocutory appeal under NMSA 1978, Section 39-3-3(B)(2) (1972), because the blood test results constituted substantial proof of a material fact. We further hold that the EMT was qualified to draw Defendant's blood under the Implied Consent Act. As the district court based its exclusion of the blood test results on a misapprehension of our case law and the statutory requirements for who may draw blood, its exclusion constituted an abuse of discretion. Accordingly, we reverse and remand.

BACKGROUND

{2} A Farmington police officer was dispatched to a local gas station after receiving a report of a possible drunk driver. Upon arriving at the gas station, the officer made contact with Defendant, who was inflating the tires of a car matching the description provided by the caller. The officer noticed Defendant had slurred speech and bloodshot, "glossy" eyes. Upon contacting the caller himself and confirming that the caller witnessed Defendant driving the vehicle, the officer had Defendant perform several field sobriety tests. During the tests, the officer observed Defendant swaying, failing to follow directions, and unable to balance on one foot. The officer also noticed Defendant's breath had a "slight odor of alcohol." Defendant admitted to drinking whiskey and taking Xanax and Suboxone earlier in the day. Based on these observations and Defendant's admission, the officer arrested Defendant for driving while intoxicated (DWI). After Defendant agreed to a blood draw pursuant to the Implied Consent Act, the officer transported Defendant to the San Juan Regional Medical Center (the Medical Center). The officer directed Danica Atwood, a hospital employee and licensed EMT, to perform the blood draw using a sealed blood draw kit. The Scientific Laboratory Division of the New Mexico Department of Health (SLD) subsequently tested Defendant's blood, which tested negative for alcohol but positive for marijuana-related metabolites, benzodiazepines, and synthetic opioids.

{3} The State charged Defendant with one count of non-aggravated DWI, in violation of NMSA 1978, Section 66-8-102 (2016). Defendant moved to suppress the blood test results on the basis that Atwood was not qualified to perform blood draws under NMSA 1978, Section 66-8-103 (1978), which provides that "[o]nly a physician, licensed professional or practical nurse or laboratory technician or technologist employed by a hospital or physician shall withdraw blood from any person in the performance of a blood-alcohol test." After the magistrate court denied his motion to suppress, Defendant pleaded no contest, reserving his right to appeal the magistrate court's decision not to suppress the blood test results.

{4} On appeal, the district court held an evidentiary hearing, during which Defendant argued that the district court should suppress the blood test results based on State v. Garcia , 2016-NMCA-044, ¶ 1, 370 P.3d 791 (holding that a licensed EMT did not fit within the statutory categories of persons "authorized to draw blood for the purpose of determining its alcohol or drug content under the Implied Consent Act"). In response, the State argued that, although an EMT license alone was not sufficient to qualify Atwood to draw blood pursuant to Section 66-8-103, her additional experience and training qualified her to do so as a laboratory technician or technologist. In support of the State's argument, Atwood testified to the following. At the time she drew Defendant's blood, Atwood held an EMT-basic license, and had been employed as an EMT and emergency department technician in the Medical Center emergency room for approximately four months. Atwood's job duties included drawing blood for medical laboratory testing, as well as performing blood draws at the request of law enforcement personnel. She worked three twelve-hour shifts per week and would draw blood from twenty-five people on average each shift. Atwood testified that, after initially being trained by other technicians and nurses in the manner in which blood is drawn at the Medical Center, she performed blood draws under supervision for six weeks until hospital personnel determined that she was competent to perform blood draws unsupervised. On cross-examination, Atwood confirmed that she never worked in a laboratory and that she was not licensed or certified as a phlebotomist.

{5} Although Atwood stated that she never received any specific training pursuant to the Implied Consent Act, she explained some of the differences between drawing blood for medical laboratory testing and drawing blood for law enforcement purposes. For medical blood draws, technicians could draw blood out of an IV line, clean the puncture site with alcohol, and give the sample to another hospital employee for transport to a laboratory for testing. However, for "legal" blood draws, technicians had to clean the puncture site with a non-alcoholic substance, such as iodine, use the collection tubes provided by the officer, and hand the tubes directly to the officer after completing the draw. Atwood testified that she collected Defendant's blood using an unexpired, SLD-approved blood collection kit in accordance with the kit's instructions.

{6} After the hearing, the district court granted Defendant's motion to suppress and entered findings of fact and conclusions of law. The district court found that

Defendant's blood was drawn by Danica Atwood, a hospital employee employed in dual capacities as an [EMT] and as an "Emergency Department Technician." Ms. Atwood's training as an Emergency Department Technician included on-the-job training in drawing blood, which, according to the [Medical Center's] policy and procedures qualified her to do "legal alcohol blood draws at the request of law enforcement personnel."

However, the district court concluded that this Court's "categorical holding" in Garcia , 2016-NMCA-044, ¶ 20, 370 P.3d 791, "that a person's 'license as an EMT does not qualify her to draw blood to determine its alcohol or drug content under the Implied Consent Act[,]' " precluded a ruling that Atwood was the same or similar to a laboratory technician for purposes of Section 66-8-103. As such, the district court excluded the blood test results. The State timely appealed the district court's order pursuant to Section 39-3-3(B)(2), certifying that the appeal was "not taken for purpose of delay, and the evidence is a substantial proof of a fact material in the proceeding."

DISCUSSION

I. The State May Appeal Pursuant to Section 39-3-3(B)(2)

{7} Before considering the merits of the State's argument, we must determine the threshold issue of whether the State has a right to appeal. Defendant contends that the State cannot appeal the district court's exclusion of the blood test results because the State has other evidence it can use to convict Defendant of DWI. We disagree.

{8} "A court's jurisdiction derives from a statute or constitutional provision." State v. Armijo , 2016-NMSC-021, ¶ 19, 375 P.3d 415 (internal quotation marks and citation omitted). Whether a party has a statutory right to an appeal is a question of law, which we review de novo. Id. "The principal command of statutory construction is that the court should determine and effectuate the intent of the Legislature, using the plain language of the statute as the primary indicator of legislative intent." State v. Hobbs , 2016-NMCA-022, ¶ 9, 366 P.3d 304 (alteration, internal quotation marks, and citation omitted). "When a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation." State v. Taylor E. , 2016-NMCA-100, ¶ 26, 385 P.3d 639 (internal quotation marks and citation omitted).

{9} Section 39-3-3(B)(2) provides, in pertinent part,

In any criminal proceeding in district court an appeal may be taken by the state to the [S]upreme [C]ourt or [C]ourt of [A]ppeals, as appellate jurisdiction may be vested by law in these courts ... within ten days from a decision or order of a district court suppressing or excluding evidence ..., if the district attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

Defendant does not dispute that the State timely filed in the district court a certification compliant with Section 39-3-3(B)(2), or question the State's motives for taking this appeal. Rather, Defendant contends that the blood test results are not "substantial proof of a fact material in the proceeding" because the State could still prove its case without them. See id. Specifically, Defendant claims that because the officer and the caller could testify as to their observations of Defendant, including his performance on the field sobriety tests and admission to drinking alcohol and taking prescription drugs, the State could still prove its case without the blood test results by demonstrating that Defendant was "impair[ed] to the slightest degree." See § 66-8-102(A) ("It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state."); State v. Gurule , 2011-NMCA-042, ¶ 7, 149 N.M. 599, 252 P.3d 823 ("In order to convict under [ Section 66-8-102 ](A), a court must find that the defendant was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the driver and the public as a result of drinking the liquor." (internal quotation marks and citation omitted)); see State v. Neal , 2008-NMCA-008, ¶ 27, 143 N.M. 341, 176 P.3d 330 ("Given the testimony as to [the d]efendant's driving behavior, physical condition, admission of drinking, and performance on the field sobriety tests, the factfinder could rely on common knowledge and experience to determine whether [the d]efendant was under the influence of alcohol.").

{10} Defendant reads State v. Gomez , 2006-NMCA-132, ¶ 7, 140 N.M. 586, 144 P.3d 145, to stand for the proposition that the State cannot appeal the exclusion of evidence unless the exclusion would "make it impossible for the State to prove the elements of its case." Defendant's understanding of Gomez is flawed. In Gomez , the State sought to invoke Section 39-3-3(B)(2) as a basis to appeal the district court's midtrial order excluding the defendant's blood test results. Gomez , 2006-NMCA-132, ¶ 3, 140 N.M. 586, 144 P.3d 145. On appeal, Judge Robinson, authoring the lead opinion, reasoned that because the defendant admitted to drinking and the arresting officer observed him exhibit behaviors indicative of intoxication, the State did not need the blood test results to prove that the defendant was guilty of DWI under the "impaired to the slightest degree" standard. See id. ¶¶ 6-7. As a result, Judge Robinson concluded that the state could not appeal the exclusion of the blood test results because they "did not go to the heart of the proof required to establish DWI." Id. ¶ 7.

{11} Importantly, however, neither of the other panel members joined in Judge Robinson's opinion. See id. ¶ 22 (Bustamante, C.J., specially concurring) ("I concur in the result of Judge Robinson's opinion."); id. ¶ 44 (Fry, J., specially concurring) ("I concur in the result of Judge Robinson's opinion, but I do not agree with the rationale supporting the result. I concur fully in Chief Judge Bustamante's concurring opinion."). Thus, Chief Judge Bustamante's special concurrence constituted the opinion of our Court, not Judge Robinson's opinion. See State v. Mendez , 2009-NMCA-060, ¶ 11, 146 N.M. 409, 211 P.3d 206 ("[W]e observe that the special concurrences of Judges Bustamante and Fry in Gomez constitute the opinion of this Court."), rev'd on other grounds , 2010-NMSC-044, ¶ 56, 148 N.M. 761, 242 P.3d 328 ; see also Commonwealth v. Hopkins, 640 Pa. 604, 164 A.3d 1133, 1139 (2017) (recognizing that a lead opinion written by one judge "lack[s] the force of precedent" where the two other panelists do not join in its reasoning). Notably, Chief Judge Bustamante specifically declined to address the merits of the district attorney's certification, instead holding that " Section 39-3-3(B)(2) does not provide an automatic appeal from suppression or exclusionary orders entered after jeopardy has attached in a trial." Gomez , 2006-NMCA-132, ¶¶ 22, 42-43, 140 N.M. 586, 144 P.3d 145 (Bustamante, C.J., specially concurring). As the timing of the State's appeal is not an issue in the instant case, Defendant's reliance on Gomez is unavailing.

{12} Defendant also cites State v. Vasquez , 2014-NMSC-010, 326 P.3d 447, and State v. Romero , 2000-NMCA-029, 128 N.M. 806, 999 P.2d 1038, in support of his argument that the exclusion of evidence must essentially "ma[k]e it impossible for the State to prove an element of its case." Romero , 2000-NMCA-029, ¶ 9, 128 N.M. 806, 999 P.2d 1038. However, we do not read these cases as holding that the State may only appeal pursuant to Section 39-3-3(B)(2) when it cannot possibly convict without the excluded evidence. Indeed, we later clarified the substantive standard in Romero by explaining, "[W]e do not read Romero as allowing the state to appeal only when the district court's ruling makes it impossible for the state to prove its case. Rather, we interpret Romero as requiring that the excluded evidence be important or significant, as opposed to evidence of minor consequence." Mendez , 2009-NMCA-060, ¶ 12, 146 N.M. 409, 211 P.3d 206. Nor did Vasquez alter this standard, as the parties in that case did not dispute whether the state could proceed without the excluded evidence. See 2014-NMSC-010, ¶ 28, 326 P.3d 447 ("[T]he State could not proceed with its prosecution without the[ excluded] witnesses, and no one claims otherwise."). Consequently, our Supreme Court had no occasion to consider the issue on certiorari review. See State v. Sanchez , 2015-NMSC-018, ¶ 26, 350 P.3d 1169 ("The general rule is that cases are not authority for propositions not considered." (internal quotation marks and citation omitted)). Thus, Defendant's argument that the State may only appeal when the district court's evidentiary ruling makes it impossible to prove its case finds no support in either Romero or Vasquez .

{13} We conclude that Defendant's blood test results are "important or significant" under the circumstances of this case. See Mendez , 2009-NMCA-060, ¶ 12, 146 N.M. 409, 211 P.3d 206. In order to prove that Defendant was intoxicated under Section 66-8-102, the State must demonstrate beyond a reasonable doubt that Defendant (1) "was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the driver and the public as a result of drinking ... liquor[,]" Gurule , 2011-NMCA-042, ¶ 7, 149 N.M. 599, 252 P.3d 823 ; see § 66-8-102(A) ; (2) was under the influence of drugs to a degree that rendered him incapable of safely driving a vehicle, see § 66-8-102(B) ; or (3) had an alcohol concentration of eight one hundredths or more in his breath or blood within three hours of driving as the result of liquor consumed before or while driving, see § 66-8-102(C)(1). To this end, the State has the option to introduce the blood test results to demonstrate the amount of alcohol or drugs in his blood. See § 66-8-110(A) ("The results of a test performed pursuant to the Implied Consent Act may be introduced into evidence in any ... criminal action arising out of the acts alleged to have been committed by the person tested for driving a motor vehicle while under the influence of intoxicating liquor or drugs."). While the test results here did not register any blood alcohol content, Defendant's blood tested positive for marijuana-related metabolites, benzodiazepines, and synthetic opioids. Without the blood test results, the State would have to rely solely on witness testimony to demonstrate Defendant's intoxication, a potentially more difficult task, given the possibility that its witnesses may become unavailable or have faded memories. Nor is it clear that, without the benefit of the test results, the State would be able to muster sufficient proof that Defendant had ingested marijuana, as he only admitted to drinking liquor and taking prescription drugs. Furthermore, as Defendant only admitted to taking prescription drugs earlier in the day, the test results were necessary to prove the amount of drugs remaining in his system at the time of arrest in order to show that he was still impaired. Thus, we conclude that the blood test results constitute "substantial proof of a fact material" sufficient to allow an interlocutory appeal pursuant to Section 39-3-3(B)(2).

II. The District Court's Suppression of the Blood Test Results Constituted an Abuse of Discretion

{14} The State argues that the district court abused its discretion by holding that Atwood was not authorized to draw Defendant's blood under the Implied Consent Act based on her status as an EMT. Specifically, the State contends that the district court misinterpreted Garcia as precluding a finding that Atwood was authorized to draw blood under the Implied Consent Act, and asserts that Atwood's training and experience are sufficient to qualify her as a laboratory technician or technologist under Section 66-8-103. We agree.

{15} "We review the [district] court's decision to exclude or admit evidence for an abuse of discretion." State v. Hanson , 2015-NMCA-057, ¶ 5, 348 P.3d 1070. "A [district] court abuses its discretion when it exercises its discretion based on a misunderstanding of the law." State v. Lente , 2005-NMCA-111, ¶ 3, 138 N.M. 312, 119 P.3d 737 "We review de novo whether the district court's decision to exclude evidence was based upon a misapprehension of the law." Romero , 2000-NMCA-029, ¶ 6, 128 N.M. 806, 999 P.2d 1038.

A. Garcia Does Not Require Exclusion of Defendant's Blood Test Results

{16} The Implied Consent Act provides that every motorist in this state, upon being arrested for DWI, is deemed to have consented to a chemical test to determine the drug or alcohol content of his or her blood. Section 66-8-107(A); see In re Suazo , 1994-NMSC-070, ¶ 7, 117 N.M. 785, 877 P.2d 1088. Any chemical test performed pursuant to the Implied Consent Act must be approved by the SLD and administered at the direction of a law enforcement officer. Section 66-8-107(B). The Legislature restricted the classes of persons authorized to draw blood for chemical tests performed pursuant to the Implied Consent Act. See § 66-8-109(A) ("Only the persons authorized by Section 66-8-103 ... shall withdraw blood from any person for the purpose of determining its alcohol or drug content."). Section 66-8-103 delineates the categories of persons authorized to perform blood draws under the Implied Consent Act: "Only a physician, licensed professional or practical nurse or laboratory technician or technologist employed by a hospital or physician shall withdraw blood from any person in the performance of a blood-alcohol test." Section 66-8-103 serves the dual purposes of ensuring "the safety of the subject and the reliability of the sample." State v. Wiberg , 1988-NMCA-022, ¶ 14, 107 N.M. 152, 754 P.2d 529. Our Court has upheld the exclusion of blood test results when the blood sample is drawn by an individual who does not fall within any of the statutorily enumerated categories of authorized blood drawers. See, e.g. , Garcia , 2016-NMCA-044, ¶ 23, 370 P.3d 791 ("The State failed to meet its burden of proving that [the d]efendant's blood was drawn by a person authorized to do so under Section 66-8-103, and the results of the test are therefore inadmissible.").

{17} We addressed Section 66-8-103 most recently in Garcia , where we affirmed the district court's exclusion of blood test results obtained as the result of a blood draw performed by an EMT while she was treating the defendant in an ambulance following an accident. 2016-NMCA-044, ¶¶ 3-5, 24, 370 P.3d 791. As a result of a head-on collision, the defendant in that case suffered injuries and had to be transported to the hospital via ambulance. Id. ¶ 3. After the responding officer noticed signs of intoxication, the officer asked an EMT in the ambulance to draw the defendant's blood. Id. The officer provided the EMT with an SLD-approved blood draw kit. Id. ¶ 4. However, the EMT did not read the kit's instructions or use the needle included in the kit because she wanted "[t]o avoid compromising [the d]efendant's care, which was her first priority[.]" Id. ¶ 5. Instead, the EMT used a sterile IV catheter and syringe from the ambulance's supply. Id. After SLD determined that the defendant's blood sample contained marijuana-related metabolites, the State charged the defendant with causing great bodily harm by vehicle while driving under the influence of drugs or alcohol. Id. ¶¶ 5-6. The district court granted the defendant's motion to suppress the blood test results on the ground that the EMT was not qualified to perform blood draws. Id. ¶ 7.

{18} On appeal, the State argued that the EMT qualified under Section 66-8-103 as a "licensed professional." Garcia , 2016-NMCA-044, ¶ 11, 370 P.3d 791. After surveying several related cases from New Mexico and other states, id. ¶¶ 12-17, we turned to the language of our statute and concluded that Section 66-8-103 established five distinct categories of individuals qualified to withdraw blood pursuant to the Implied Consent Act: (1) physicians, (2) licensed professional nurses, (3) licensed practical nurses; (4) laboratory technicians (employed by a hospital or physician), and (5) technologists (employed by a hospital or physician). Garcia , 2016-NMCA-044, ¶¶ 18-19, 370 P.3d 791. Thus, we held that "[t]here is no separate category of a 'licensed professional,' as urged by the State[,] ... and since [the EMT] d[id] not satisfy any of the categories that are listed as the 'only' ones qualified to draw blood samples she [was] not qualified under the Implied Consent Act." Id. ¶ 19.

{19} We continued by adding that, even if there were a separate category of "licensed professional," the EMT's license did not qualify her to draw blood under the Implied Consent Act. Id. ¶ 20. In arriving at this conclusion, we noted that the EMT was employed by an ambulance company licensed to provide "emergency medical services," which were defined as "the services rendered by providers in response to an individual's need for immediate medical care to prevent loss of life or aggravation of physical or psychological illness or injury." Id. ¶ 20 (quoting NMSA 1978, § 24-10B-3(K) (2003) ); see generally Emergency Medical Services Act, NMSA 1978, §§ 24-10B-1 to -13 (1983, as amended through 2014). Within this statutory framework, we concluded that the EMT's license allowed her to perform blood draws, "but only in the context of providing ... services rendered 'in response to an individual's need for immediate medical care to prevent loss of life or aggravation of physical or psychological illness or injury.' " Garcia , 2016-NMCA-044, ¶¶ 21-22, 370 P.3d 791 (quoting § 24-10B-3(K) ). We also noted that the general EMT training did "not include the protocols for performing blood draws that comply with the [SLD] regulations ... under the Implied Consent Act." Id. ¶ 22. Given these facts, we held that the EMT's licensure "did not authorize her to draw blood for the purpose of determining its alcohol or drug content." Id.

{20} Here, Defendant contends, and the district court concluded, that Garcia is outcome determinative on the question of whether Atwood, a licensed EMT, is authorized to draw blood under Section 66-8-103. The State, on the other hand, argues that Garcia does not preclude a determination that Atwood is authorized to draw blood on the basis of her additional training and experience because Garcia , as the State puts it, "merely held that an individual's EMT license alone did not entitle her to membership in any of the categories of individuals authorized to draw blood under Section 66-8-103." (Emphasis added.) We find the State's argument to be persuasive.

{21} The distinguishable facts presented and arguments made in the instant case warrant a different analysis than that of Garcia , which did not address the question whether an EMT can qualify as a laboratory technician or technologist employed by a hospital or physician based on the EMT's additional training and experience. Unlike Garcia , the State, here, is not arguing that Atwood is qualified to draw blood under Section 66-8-103 simply because she holds an EMT license. Rather, the State is arguing that Atwood's license, combined with her experience and training , qualifies her as a laboratory technician or technologist. We had no occasion to address this argument in Garcia , as the State only argued in that case that the EMT qualified under a separate category set forth in Section 66-8-103 (i.e., a "licensed professional"). See Garcia , 2016-NMCA-044, ¶ 11, 370 P.3d 791. There is no indication that the state in Garcia argued that the EMT qualified as a laboratory technician or technologist employed by a hospital or physician. Nor is there any indication that the Garcia EMT had any additional training or experience in drawing blood that would qualify her under any other category listed in Section 66-8-103.

{22} Rather, this Court in Garcia merely addressed the issue of whether an EMT license, by itself , qualified an individual to perform blood draws under Section 66-8-103. After determining that Section 66-8-103 did not contain a sixth category of authorized blood drawers, i.e., one covering "licensed professionals," we stated, "Even if we were able to accept the State's argument for a separate category of a 'licensed professional,' [the EMT's] license as an EMT does not qualify her to draw blood ... under the Implied Consent Act." Garcia , 2016-NMCA-044, ¶¶ 19-20, 370 P.3d 791 (emphasis added). Thus, it is clear we were addressing whether the EMT's license would qualify her under the asserted (but rejected) category of "licensed professional," not whether an EMT with greater experience and training could potentially qualify under another enumerated category. Therefore, Garcia does not stand for the proposition that Section 66-8-103 prohibits all EMTs from drawing blood. See Sanchez , 2015-NMSC-018, ¶ 26, 350 P.3d 1169 ("The general rule is that cases are not authority for propositions not considered." (internal quotation marks and citation omitted)).

{23} Moreover, the facts of Garcia are distinguishable. While both cases involve EMTs, the circumstances of the blood draws involved in each case could not be more different. Unlike Garcia , there is no evidence that Atwood sacrificed the reliability of the test results because she was treating Defendant for injuries. See 2016-NMCA-044, ¶ 5, 370 P.3d 791. While it was unclear how much experience the Garcia EMT had with blood draws, Atwood testified that she typically performed approximately twenty-five blood draws each shift. Perhaps most importantly, Atwood drew Defendant's blood in a hospital setting using an SLD-approved test kit, unlike the makeshift, ambulance-based blood draw involved in Garcia . See id. ¶¶ 3-5. These differences are significant, as they demonstrate that Atwood had significantly more experience than the Garcia EMT in drawing blood for purposes of the Implied Consent Act and that the blood sample used here was inherently more reliable than the one used in Garcia . In light of the foregoing, we conclude that Garcia does not dictate the result of this case.

B. Atwood Is Authorized to Draw Blood Under Section 66-8-103

{24} We turn now to the merits of the State's contention that Atwood qualifies as either a laboratory technician or a technologist under Section 66-8-103 based on her additional experience and training. In order to answer this question, we must determine what the Legislature intended in using the terms "laboratory technician" and "technologist." We begin with the term "laboratory technician."

{25} "The primary goal in construing a statute is to ascertain and give effect to the intent of the Legislature." State v. Holt , 2016-NMSC-011, ¶ 10, 368 P.3d 409 (internal quotation marks and citation omitted). "In doing so, we first look to the words the Legislature chose and the plain meaning of the language." State v. Ramos-Arenas , 2012-NMCA-117, ¶ 6, 290 P.3d 733 (internal quotation marks and citation omitted). "The words of a statute, including terms not statutorily defined, should be given their ordinary meaning absent clear and express legislative intention to the contrary." Id. (internal quotation marks and citation omitted). "We reject a mechanical statutory construction when the results would be absurd, unreasonable, or contrary to the spirit of the statute. When interpreting a statute, we are also informed by the history, background, and overall structure of the statute, as well as its function within a comprehensive legislative scheme." State v. Almanzar , 2014-NMSC-001, ¶ 15, 316 P.3d 183 (internal quotation marks and citations omitted).

{26} There is no statutory or regulatory definition of "laboratory technician." Moreover, unlike physicians or nurses, New Mexico does not have a statutory or regulatory licensing requirement for laboratory technicians. See generally Medical Practice Act, NMSA 1978, §§ 61-6-1 to -35 (1923, as amended through 2017) (providing licensure requirements and penalties for practicing medicine without a license); Nursing Practice Act, NMSA 1978, §§ 61-3-1 to -31 (1968, as amended through 2019) (providing licensure requirements and penalties for practicing nursing without a license). "In the absence of a statutory definition, we rely on a dictionary definition to determine the meaning of the language used." City of Eunice v. N.M. Taxation & Revenue Dep't , 2014-NMCA-085, ¶ 14, 331 P.3d 986. "Technician" is generally defined as "one who has acquired the technique of an ... area of specialization." Technician , Merriam-Webster's Collegiate Dictionary (11th ed. 2003); State v. Webster , 102 Nev. 450, 726 P.2d 831, 833 (1986) ("We note that 'technician' is generally used in a generic sense. A technician is one versed or skilled in the technical details of a subject or art." (alteration, internal quotation marks, and citation omitted)). Thus, a laboratory technician is a person who has acquired the technique of an area of specialization suitable for working in a laboratory setting. More specifically, in the context of Section 66-8-103, which only pertains to blood draws, the specialized skill required is that of drawing blood. See NMSA 1978, § 12-2A-2 (1997) ("Unless a word or phrase is defined in the statute or rule being construed, its meaning is determined by its context, the rules of grammar and common usage. A word or phrase that has acquired a technical or particular meaning in a particular context has that meaning if it is used in that context."); Janet v. Marshall , 2013-NMCA-037, ¶ 9, 296 P.3d 1253 ("We look at the plain meaning of the words used in the context of the statutory text as a whole." (internal quotation marks and citation omitted)).

{27} New Mexico courts have not previously addressed the requirements for qualification as a laboratory technician under Section 66-8-103. However, several other states have addressed similar issues in determining when and under what circumstances an individual qualifies as a statutorily undefined and unlicensed professional for purposes of their counterpart implied consent laws and concluded that the proper indicator is whether the medical community accepted the individual's training and experience as adequate for the position. See, e.g. , State v. Masteller , 86 S.D. 514, 198 N.W.2d 503, 504 (1972) ("In authorizing laboratory technicians, medical technicians, and medical technologists to withdraw blood samples our statute merely adopts approved medical practice. It assures the individual that blood sampling will be performed by trained medical personnel in clinical surroundings. Our legislature was obviously aware that some hospital, clinic, laboratory, or physician would be responsible for the training, qualifications, and competence of medical assistants employed and supervised by them to perform the routine task of withdrawing a blood sample. No other standard is needed for the protection of the individual or the preservation of the purity of the blood sample."); see also, e.g. , People v. Randle , 148, 183 Ill.App.3d 146, 131 Ill.Dec. 697, 538 N.E.2d 1253, 1255 (1989) ("Illinois has no formal licensing requirements for becoming a phlebotomist. It does not seem pragmatic, then, for a court to impose a higher standard for phlebotomists than that standard imposed by the health care industry. If hospitals, physicians and other medical people, all who bear heavy responsibility for the lives and health of those in their care, see fit to trust [the phlebotomist] to follow correct medical procedures, it makes little sense for courts to find [the phlebotomist] untrained and unqualified."); State v. Winquist , 247 N.W.2d 256, 259 (Iowa 1976) ("The test to determine whether a person holding himself out as a medical technologist is a medical technologist ... is whether a satisfactory showing can be made that he has sufficient training in the withdrawal of blood to accomplish the legislative objectives of protecting the individual's health, guarding against infection and pain, and assuring the accuracy of the test, all in accordance with accepted medical standards."); Holler v. N. Dakota Dep't of Transp. Dir. , 470 N.W.2d 616, 617 (N.D. 1991) ("Where there is no statutory requirement of licensure or educational or training standards, the test for determining whether the person is a qualified technician is whether a satisfactory showing can be made that the technician has sufficient training in the withdrawal of blood to accomplish the legislative objectives of protecting the individual's health, guarding against infection and pain, and assuring the accuracy of the test, all in accordance with accepted medical standards." (footnote omitted) (citing Winquist , 247 N.W.2d at 259 )); Masteller , 198 N.W.2d at 504 (noting that the statute authorizing laboratory technicians, medical technicians, and medical technologists to withdraw blood samples merely adopts approved medical practice and assures the individual that blood sampling will be performed by trained medical personnel in clinical surroundings. And further providing that "[n]o other standard is needed for the protection of the individual or the preservation of the purity of the blood sample."); State v. Bingham , 921 S.W.2d 494, 496 (Tex. Ct. App. 1996) ("The common-sense interpretation of the term 'qualified technician[ ]' ... must include a phlebotomist who a hospital or other medical facility has determined to be qualified in the technical job of venesection or phlebotomy, i.e., the drawing of blood."). We find the logic in this line of cases persuasive and similarly conclude that in authorizing laboratory technicians employed by a hospital or physician to withdraw blood under the Implied Consent Act-irrespective of their licensure status-our Legislature was adopting approved medical practice. In other words, an individual qualifies as a laboratory technician for purposes of Section 66-8-103 so long as a hospital or physician determined that she was qualified to perform blood draws in accordance with accepted medical standards based on her demonstrable skills, training, and experience.

{28} While Atwood did not have the title "laboratory technician," or work in a laboratory, these facts alone are of no moment. Rather, the controlling factors are the individual's assigned duties, skills, training, and experience. See State v. Stegman , 41 Kan.App.2d 568, 203 P.3d 52, 58 (2009) ("If the person in question has sufficient training in the withdrawal of blood to accomplish the legislative objectives of protecting the individual's health, guarding against infection and pain, and assuring the accuracy of the test, all in accordance with accepted medical standards, then ... that person is a phlebotomist regardless of whether he or she is called a 'phlebotomist' by his or her employer."); see also Arizona ex rel. Pennartz v. Olcavage , 200 Ariz. 582, 30 P.3d 649, 655 n.4 (Ariz. Ct. App. 2001) (emphasizing that "it is the training and experience that makes a person 'qualified'-not the title itself"); People v. Jenne , 168 Mich.App. 518, 425 N.W.2d 116, 117 (1988) (concluding that an individual qualified as a "medical technician" because of her training despite having a different title); Krause v. State , 405 S.W.3d 82, 86 (Tex. Crim. App. 2013) ("The record also confirms that, functionally, [the blood drawer] was not emergency medical services personnel. It is true that [she] had training in general emergency procedures. She also was licensed as an EMT-I and had that title at the hospital. But that training and her license and title had little to do with what she actually did at the hospital, which was almost exclusively drawing blood." (emphasis omitted)). Thus, we hold that an individual qualifies as a laboratory technician, despite her official title, if she has sufficient skills, training, and experience to assure a hospital or physician that she is qualified to perform blood draws in accordance with approved medical practice.

{29} Turning to the facts of this case, we conclude that Atwood's assigned duties, skills, training, and experience qualify her to draw blood under Section 66-8-103. As the district court found, "Atwood's training as an [e]mergency [d]epartment [t]echnician included on-the-job training in drawing blood, which, according to the [Medical Center's] policy and procedures qualified her to do 'legal alcohol blood draws at the request of law enforcement personnel.' " Atwood had been employed by the Medical Center as an EMT and emergency room technician for approximately four months at the time she drew Defendant's blood. Atwood's assigned duties included drawing blood for legal and medical laboratory testing, a task she was called on to do roughly twenty-five times per shift, on average. Atwood received training from other technicians and nurses in drawing blood, and the Medical Center determined she was competent to perform draws unsupervised. Finally, Atwood confirmed, and Defendant does not dispute, that the blood draw was properly performed in accordance with the SLD-approved blood draw kit instructions. Based on this showing, we conclude that Atwood qualifies as a laboratory technician under Section 66-8-103. Accordingly, we hold that the district court abused its discretion in excluding the blood test results.

{30} The regulations promulgated by the SLD bolster our holding. The Legislature has shown significant deference to the SLD's expertise in terms of ensuring the reliability of tests taken pursuant to the Implied Consent Act. See NMSA 1978, § 24-1-22(A) (2003) ("The [SLD] is authorized to promulgate and approve satisfactory techniques or methods to test persons believed to be operating a motor vehicle ... under the influence of drugs or alcohol and to issue certification for test operators and their instructors that shall be subject to termination or revocation at the discretion of the [SLD]."); § 24-1-22(B) ("The [SLD] shall establish criteria and specifications for equipment, training, quality control, testing methodology, blood-breath relationships and the certification of operators, instructors and collectors of breath samples."); § 24-1-22(C) ("All laboratories analyzing breath, blood or urine samples pursuant to the provisions of the Implied Consent Act ... shall be certified by the [SLD]."). In light of this deference, the fact that SLD regulations provide that "[t]he term laboratory technician shall include phlebotomists" is particularly persuasive. 7.33.2.15(A)(1) NMAC ; see Kirkpatrick v. Bd. of Cty. Comm'rs of Santa Fe Cty. , 2009-NMCA-110, ¶ 11, 147 N.M. 127, 217 P.3d 613 (stating that one of our rules of statutory interpretation is to "give persuasive weight to long-standing administrative constructions of statutes by the agency charged with administering them" (internal quotation marks and citation omitted)). Granted, like the term "laboratory technician," "phlebotomist" is also undefined by statute or regulation. Nor is there a state licensing requirement for phlebotomists. Rather, the term "phlebotomist" is generally used in a generic sense to refer to those who practice phlebotomy, which is defined as "the letting of blood for transfusion, diagnosis, or experiment[.]" Phlebotomy , Merriam-Webster's Collegiate Dictionary (11th ed. 2003); see Pennartz , 30 P.3d at 655 ("[A] phlebotomist, by definition, is a person who, through training or experience, is competent to draw blood."). Given Atwood's testimony that she regularly performed blood draws as part of her duties at the Medical Center, we conclude that she qualifies as a phlebotomist, a status which SLD considers to be in the same vein as laboratory technicians.

{31} We find unavailing Defendant's remaining argument that Atwood is not qualified to draw blood under Section 66-8-103 because she does not work in a role that permits or requires her to test bodily fluids. Nowhere in the Implied Consent Act is there any indication that a blood drawer is expected or required to perform the blood-alcohol analysis. Indeed, by regulation, "[t]he blood samples shall be delivered to SLD or a laboratory certified by SLD to conduct tests for alcohol or other drug content." 7.33.2.15(A)(4) NMAC (emphasis added). Thus, the fact that Atwood does not have the knowledge or authority to test the blood sample is irrelevant.

{32} The result we reach today is in line with the purposes of Section 66-8-103, as well as the Implied Consent Act as a whole. Our decision ensures the safety of defendants and the reliability of blood samples by limiting those authorized to draw blood to qualified individuals who have been approved by the medical community to perform such tasks. See Wiberg , 1988-NMCA-022, ¶ 14, 107 N.M. 152, 754 P.2d 529 (stating that the purpose of Section 66-8-103 is to ensure "the safety of the subject and the reliability of the sample"). At the same time, our decision also avoids unnecessarily narrowing the class of individuals qualified to perform blood draws in aid of the prosecution of DWI offenses. See Wiberg , 1988-NMCA-022, ¶ 13, 107 N.M. 152, 754 P.2d 529 (rejecting a construction of the Implied Consent Act urged by the defense that "would significantly and unnecessarily limit the classes of individuals who could assist in furthering the statute's legislative purpose" of deterring drunk drivers and removing them from the highways).

{33} Finally, we note that defendants may always challenge the admissibility of a blood test based upon concerns that the individual performing the blood draw did not follow the proper procedures. However, as Defendant does not dispute that Atwood followed the instructions in the SLD-approved blood draw kit in gathering his blood sample in this case, we need not address any such issue here. Given our conclusion, we need not address whether Atwood also qualifies under Section 66-8-103 as a technologist.

CONCLUSION

{34} For the forgoing reasons, we reverse the district court's order excluding Defendant's blood test results and remand for further proceedings consistent with this opinion.

{35} IT IS SO ORDERED.

WE CONCUR:

J. MILES HANISEE, Judge

JACQUELINE R. MEDINA, Judge

      Garcia suggested, but did not hold, that a laboratory technician must be employed by a hospital or physician. See 2016-NMCA-044, ¶ 18, 370 P.3d 791 ("Because we have found no applicable separate statutory definition for a 'laboratory technician' and given the structure of the phrase, it appears that a laboratory technician must be employed by a hospital or physician to qualify. However, that question is not before us in this case."). We agree with Garcia that Section 66-8-103 appears to require a hospital or physician to employ the laboratory technician. Nonetheless, as Defendant does not dispute that Atwood worked in a hospital, we assume, without deciding, that Section 66-8-103 requires a laboratory technician to be employed by a hospital or physician.

      We recognize that national organizations offer certifications for laboratory technicians. See generally Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook: How to Become a Medical and Clinical Laboratory Technologist or Technician , https://www.bls.gov/ooh/healthcare/medical-and-clinical-laboratory-technologists-and-technicians.htm#tab-4 (last visited Apr. 22, 2019) (providing information on obtaining medical laboratory technician certifications). However, because New Mexico does not require laboratory technicians to hold any such certification and because Section 66-8-103 does not specify that laboratory technicians must be licensed or certified, we do not believe the Legislature intended to authorize only laboratory technicians holding a national certification to draw blood under the Implied Consent Act. If the Legislature intended to authorize only certified laboratory technicians to draw blood under Section 66-8-103, it could have expressly included such a requirement similar to the licensure requirement for professional or practical nurses. See State v. Ramos , 2013-NMSC-031, ¶ 15, 305 P.3d 921 (noting that when the Legislature knew how to include something, and did not, the courts assume the choice was deliberate). Thus, we decline to read into the statute any additional requirement that laboratory technicians must hold a national certification. See State v. Hubble , 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 579 ("We will not read into a statute language which is not there, especially when it makes sense as it is written.").


author: DUFFY, Judge.

text:
    BELEN CONSOLIDATED SCHOOL DISTRICT, Respondent, v. The COUNTY OF VALENCIA, Petitioner. and Gregory A. Nash and Susie K. Nash, Plaintiffs-Appellants, v. Group I: Board of County Commissioners of Catron County, New Mexico, a Political Subdivision of the State of New Mexico; and Elena Gellert, and Group II: All Unknown Claimants of Interest in the Premises Adverse to the Plaintiffs, Defendants-Appellees.
    Nos. A-1-CA-35474 A-1-CA-37081
    Court of Appeals of New Mexico.
    Filing Date: May 29, 2019 Certiorari Granted, August 9, 2019, Nos. S-1-SC-37692 and S-1-SC-37778
    Modrall, Sperling, Roehl, Harris & Sisk, P.A., Arthur D. Melendres, Zachary L. McCormick, Albuquerque, NM, for Respondent Belen Consolidated School District
    Nance, Pato & Stout, LLC, Adren R. Nance, David M. Pato, Socorro, NM, for Petitioner Valencia County, for Appellees Catron County Board of Commissioners
    The Turner Law Firm, LLC, Scott E. Turner, Albuquerque, NM, for Appellants Gregory A. Nash and Susie K. Nash
   DUFFY, Judge.

{1} The formal opinion filed in this case on May 2, 2019, is hereby withdrawn and this opinion is substituted in its place. In these appeals, we address whether the defendant counties are immune from Plaintiffs' quiet title lawsuits under NMSA 1978, Section 42-11-1 (1979) ("Granting immunity; providing for exceptions."). In two separate quiet title suits, Plaintiffs named the County of Valencia (Valencia County) and the Board of County Commissioners of Catron County (Catron County) (collectively, the Counties) as parties who claimed or may claim an interest in the subject properties. In both actions, the Counties responded by filing motions to dismiss on the ground that Section 42-11-1 provided them with immunity and barred the lawsuits. In the Valencia County suit, the district court determined that Valencia County was not immune from suit and allowed the lawsuit to proceed. In the Catron County suit, the district court reached the opposite conclusion and dismissed the lawsuit. Because these appeals raise substantially similar issues, we exercise our discretion to consolidate them for decision. See Rule 12-317(B) NMRA. We conclude that Section 42-11-1 grants the Counties immunity from these lawsuits, and that there is no statutory exception to the Counties' immunity in these cases. We therefore reverse the district court in the Valencia County suit and affirm the district court in the Catron County suit.

BACKGROUND

Development of Immunity in New Mexico

{2} Before presenting the factual and procedural background of these cases, we provide a brief overview of the history and development of the law of immunity relevant to this appeal. In 1876, our territorial legislature "adopted the common law as the rule of practice and decision[.]" Beals v. Ares , 1919-NMSC-067, ¶ 36, 25 N.M. 459, 185 P. 780. Consequently, New Mexico followed the common law doctrine of sovereign immunity, whereby "no sovereign state can be sued in its own courts or in any other without its consent and permission." Hicks v. State , 1975-NMSC-056, ¶ 4, 88 N.M. 588, 544 P.2d 1153 (internal quotation marks and citation omitted), superseded by statute as stated in Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 8, 140 N.M. 205, 141 P.3d 1259 ; see id. ("[T]he doctrine of sovereign immunity is one of common law, judicially created."). Due to the "oftentimes harsh results of that doctrine," our Legislature carved out certain statutory exceptions to sovereign immunity in which the state gave its consent to be sued. Id. ¶ 5. In 1947, the Legislature enacted such an exception in NMSA 1978, Section 42-6-12 (1947), allowing the State to be sued in certain property actions. See Brosseau v. N.M. State Highway Dep't, 1978-NMSC-098, ¶ 6, 92 N.M. 328, 587 P.2d 1339 (stating that the purpose of Section 42-6-12 was to create an exception to sovereign immunity). Section 42-6-12 provides:

Upon the conditions herein prescribed for the protection of the state of New Mexico, the consent of the state is given to be named a party in any suit which is now pending or which may hereafter be brought in any court of competent jurisdiction of the state to quiet title to or for the foreclosure of a mortgage or other lien upon real estate or personal property, for the purpose of securing an adjudication touching any mortgage or other lien the state may have or claim on the premises or personal property involved.

{3} Section 42-6-12 remains in effect and unmodified since its enactment. In its seventy-two year history, it has been construed only once, in 1958, when the New Mexico Supreme Court, relying on specific language in the statute, concluded that the scope of the state's consent to suit granted by the statute was limited to quiet title actions against the state "for the limited purpose of aiding a mortgagee who discovers that the [s]tate has acquired an interest in the mortgaged property and is unable to pass a marketable title to the purchaser at a foreclosure sale unless the state can be joined in the foreclosure suit." Maes v. Old Lincoln Cty. Mem'l Comm'n , 1958-NMSC-115, ¶ 10, 64 N.M. 475, 330 P.2d 556 ; see also Nevares v. State Armory Bd. , 1969-NMSC-144, ¶ 11, 81 N.M. 268, 466 P.2d 114 (applying Maes without analysis).

{4} In 1975, the New Mexico Supreme Court abolished sovereign immunity "as a defense by the [s]tate, or any of its political subdivisions, in tort actions." Hicks , 1975-NMSC-056, ¶ 9, 88 N.M. 588, 544 P.2d 1153 ("Sovereign immunity was born out of the judicial branch of government, and it is the same branch which may dispose of the doctrine."). Three years later, our Supreme Court extended the holding of Hicks and abolished sovereign immunity in quiet title actions as well. Brosseau, 1978-NMSC-098, ¶ 11, 92 N.M. 328, 587 P.2d 1339.

{5} The Legislature responded to Hicks by enacting statutes that created immunity for the State once again. See NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015) (Tort Claims Act); Ferguson v. N.M. State Highway Comm'n, 1982-NMCA-180, ¶¶ 4-6, 99 N.M. 194, 656 P.2d 244 (affirming the Legislature's constitutional authority to adopt statutory partial immunity and observing that New Mexico turned from common law total immunity to our Supreme Court's denial of any immunity to partial statutory immunity). And one year after Brosseau was decided, the Legislature reestablished immunity in property actions by enacting Section 42-11-1, which provides that "[t]he state of New Mexico and its political subdivisions ... may not be named a defendant in any suit, action, case or legal proceeding involving a claim of title to or interest in real property except as specifically authorized by law."

The Valencia County Suit

{6} In the Valencia County suit, Plaintiff Belen Consolidated School District (School District) sought to quiet title to a piece of real property in order to sell it. The School District named Valencia County as a party defendant, alleging that Valencia County had claimed an interest in the property. Valencia County filed a motion to dismiss, claiming immunity from suit pursuant to Section 42-11-1. And although it never asserted a specific claim to title, Valencia County stated that it used the land in question as a park and sports facility for area youth. In response, the School District claimed that Section 42-6-12 provides an exception to Valencia County's immunity and allows for quiet title lawsuits against political subdivisions of the state, including counties. At the hearing, the district court concluded that Brosseau was controlling and denied Valencia County's motion to dismiss. We accepted Valencia County's appeal on a writ of error pursuant to Rule 12-503(B) NMRA.

The Catron County Suit

{7} In the Catron County suit, Plaintiffs Gregory A. Nash and Susie K. Nash (the Nashes) filed a complaint against Catron County and others to quiet title to a piece of real property that they owned in fee simple pursuant to a recorded warranty deed. The Nashes' property is located adjacent to and shares a boundary line with a property located in Reserve, New Mexico, which is owned by Catron County and apparently houses the Catron County courthouse complex. The Nashes named Catron County as a party that may claim an interest in their property due to a later-recorded deed and "to the extent [Catron] County may not agree with the location of the boundary line of the [p]roperty."

{8} Catron County moved to dismiss the Nashes' complaint for failure to state a claim upon which relief may be granted, arguing that it was immune from suit pursuant to Section 42-11-1. Catron County acknowledged that Section 42-6-12 provides an exception to immunity but argued that our Supreme Court's holding in Maes controlled and limited the state's consent to be sued to foreclosure suits in which the state claims an interest in the mortgaged property. In response, the Nashes relied upon Brosseau , particularly its statement that "[t]he doctrine of sovereign immunity may not be interposed to bar quiet title actions if its effect is to deny one a remedy for the taking of his property without compensation." 1978-NMSC-098, ¶ 12, 92 N.M. 328, 587 P.2d 1339. They asked the district court to consider the public policy articulated in Brosseau -that "[i]t is in the public interest that [clouds on title] be removed in order that land be put to its full potential use[,]" and that property owners "may have no adequate substitute to obtain an adjudication of their property rights as against the claimed interest of the [s]tate." Id. ¶¶ 11-12. The district court granted Catron County's motion to dismiss, concluding the Nashes' claim was barred by statutory immunity.

DISCUSSION

{9} Whether Section 42-11-1 bars Plaintiffs' quiet title suits against the Counties is a question of law that we review de novo. See Rutherford v. Chaves Cty. , 2003-NMSC-010, ¶ 8, 133 N.M. 756, 69 P.3d 1199 ("The standard of review for determining whether governmental immunity under the [Tort Claims Act] bars a tort claim is a question of law which we review de novo."), abrogated on other grounds as recognized by Lujan v. N.M. Dep't of Transp., 2015-NMCA-005, ¶¶ 8-9, 341 P.3d 1.

{10} The starting point for our discussion is to define the framework of controlling authority, considering Brosseau , which abolished judicially created sovereign immunity from quiet title actions in 1978, and the Legislature's enactment in 1979 of Section 42-11-1, which provides the State and its political subdivisions with statutory immunity in any lawsuit "involving a claim of title to or interest in real property." The Nashes urge us to construe Section 42-11-1 in a manner consistent with Brosseau, relying on the principle of statutory construction that "[w]e presume that the [L]egislature knew about the existing law and did not intend to enact a law inconsistent with any existing law." Doe v. State ex rel. Governor's Organized Crime Prevention Comm'n, 1992-NMSC-022, ¶ 12, 114 N.M. 78, 835 P.2d 76. This principle, however, is inapplicable in circumstances where the "legislation directly and clearly conflicts with the common law[.]" Sims v. Sims, 1996-NMSC-078, ¶ 23, 122 N.M. 618, 930 P.2d 153. When a direct conflict exists, our Supreme Court has made clear that "the legislation will control because it is the most recent statement of the law." Id. ; Beals, 1919-NMSC-067, ¶ 36, 25 N.M. 459, 185 P. 780 (stating that when a statute is counter to the common law, the common law gives way insofar as the statute conflicts with its principles). Section 42-11-1 is addressed to the same subject matter as Brosseau and directly conflicts with its holding. Consequently, Brosseau must yield. See Sims , 1996-NMSC-078, ¶ 23, 122 N.M. 618, 930 P.2d 153 (holding that legislation controls when it "directly and clearly conflicts with the common law"). Section 42-11-1 controls and acts as a bar to quiet title suits against the state and its political subdivisions unless specifically authorized by law.

{11} In light of the incongruity between Brosseau and Section 42-11-1, the Counties question the ongoing effect of Section 42-6-12. Plaintiffs, in contrast, argue that Section 42-6-12 should be construed broadly to waive immunity for all quiet title suits against the state and its political subdivisions. Section 42-6-12 was not amended or abolished when the Legislature reinstated immunity in property actions by enacting Section 42-11-1, and, as noted, Section 42-6-12 remains in effect today. See PNM Gas Servs. v. N.M. Pub. Util. Comm'n (In re Petition of N.M. Gas Servs. ), 2000-NMSC-012, ¶ 73, 129 N.M. 1, 1 P.3d 383 ("We presume that the Legislature [i]s aware of existing law ... at the time it enact[s new law]."). Regardless, we are bound by our Supreme Court's interpretation of Section 42-6-12 in Maes , which limits the state's consent to be sued to circumstances where "the [s]tate has acquired an interest in the mortgaged property and [the mortgagee] is unable to pass a marketable title to the purchaser at a foreclosure sale unless the state can be joined in the foreclosure suit." 1958-NMSC-115, ¶ 10, 64 N.M. 475, 330 P.2d 556 ; see State ex rel. Martinez v. City of Las Vegas , 2004-NMSC-009, ¶ 22, 135 N.M. 375, 89 P.3d 47 ("[W]hile the Court of Appeals is bound by Supreme Court precedent, the Court is invited to explain any reservations it might harbor over its application of [Supreme Court] precedent so that [the Supreme Court] will be in a more informed position to decide whether to reassess prior case law[.]"). Because these circumstances are not present in either suit, we follow Maes and hold that the waiver of immunity set forth in Section 42-6-12 does not authorize Plaintiffs' quiet title suits.

{12} We reach our holding with some uncertainty about the effect of Brosseau on Maes. We note that when the Hicks Court abolished sovereign immunity in tort actions, it expressly overruled all prior cases in which "governmental immunity from tort liability was recognized," but that the Brosseau Court did not make any similar expression. Hicks , 1975-NMSC-056, ¶ 15, 88 N.M. 588, 544 P.2d 1153 ; Brosseau , 1978-NMSC-098, 92 N.M. 328, 587 P.2d 1339. Nevertheless, we question whether, by abolishing the common law foundation that underlies Maes , the Brosseau Court also intended to part company with the rationale provided in Maes for construing Section 42-6-12 in the manner that it did. Compare Maes , 1958-NMSC-115, ¶ 11, 64 N.M. 475, 330 P.2d 556 ("Lest any doubt remain, it must be kept in mind that statutes authorizing suits against the state are in derogation of sovereignty and must be strictly construed."), with NMSA 1978, § 12-2A-18(C) (1997) ("The presumption that a civil statute in derogation of the common law is construed strictly does not apply to a statute of this state."). In today's landscape, immunity is predicated on the interplay of the two statutes discussed herein and presents a matter of statutory construction-an analysis we do not engage in given our conclusion that Maes still controls.

Plaintiffs' Due Process Arguments

{13} As a final matter, we note that both the School Board and the Nashes raise due process arguments on appeal, arguing that their inability to bring quiet title suits amounts to an unconstitutional taking and that no other remedy is available under these circumstances. We decline to address the Nashes' argument following our review of the record, as the Nashes failed to raise this argument to the district court in the Catron County suit and thus failed to preserve it for appeal. See Crutchfield v. N.M. Dep't of Taxation & Revenue , 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 (determining constitutional issue was not preserved where party failed to invoke a ruling of the district court on the issue). After reviewing the School District's constitutional argument, we find it insufficiently developed for consideration on the merits. The School District states that "[t]he taking of property without compensation, as [Valencia] County seeks to do here, is a violation of both state and federal constitutional rights," but has failed to demonstrate that the Takings Clause is applicable in a case involving public lands or that other remedies, such as inverse condemnation proceedings, are unavailable. See State v. Guerra , 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (stating that the appellate courts are under no obligation to review unclear or undeveloped arguments). Given the record and arguments before us, we decline to address the School District's undeveloped due process argument.

CONCLUSION

{14} For the foregoing reasons, in the Valencia County suit, we reverse the district court's order denying Valencia County's motion to dismiss School District's quiet title complaint and remand for entry of an order dismissing the action against Valencia County. In the Catron County suit, we affirm the district court's order dismissing the quiet title complaint against Catron County.

{15} IT IS SO ORDERED.

WE CONCUR:

JENNIFER L. ATTREP, Judge

KRISTINA BOGARDUS, Judge

      This statute was formerly compiled as NMSA 1941, Section 25-1312, and NMSA 1953, Section 22-14-12. It was recompiled as Section 42-6-12 without alteration.


author: HANISEE, Judge.

text:
    STATE of New Mexico and County of Bernalillo, Plaintiffs-Appellees, and Frank Foy and John Casey, Qui Tam Plaintiffs-Appellants, v. OPPENHEIMER & CO., INC.; Bosc, Inc.; Patrick Padilla ; Royce O. Simpson; Thomas Wayne Hayes; John Does 1 through 9; and John Does 10 through 19, Defendants.
    No. A-1-CA-35912
    Court of Appeals of New Mexico.
    Filing Date: May 30, 2019
    Hector H. Balderas, Attorney General, Joseph M. Dworak, Assistant Attorney General, Sean M. Cunniff, Assistant Attorney General, Santa Fe, NM, for Appellee State of New Mexico
    W. Ken Martinez, County Attorney, Albuquerque, NM, for Appellee County of Bernalillo
    Victor R. Marshall & Associates, P.C., Victor R. Marshall, Albuquerque, NM, for Appellants
   HANISEE, Judge.

{1} Qui tam plaintiffs Frank Foy and John Casey (Qui Tam Plaintiffs) appeal from the district court's order dismissing their complaint (Complaint) brought pursuant to the Fraud Against Taxpayers Act (FATA), NMSA 1978, §§ 44-9-1 to - 14 (2007, as amended through 2015). Qui Tam Plaintiffs contend that the district court erred in granting the State of New Mexico and County of Bernalillo's joint motion to dismiss the Complaint. We disagree and affirm.

BACKGROUND

{2} In August 2015 Qui Tam Plaintiffs filed a qui tam action under Section 44-9-5 of FATA against former Bernalillo County Treasurer Patrick Padilla, two investment brokers and the brokerage firms for which they worked, and nineteen unnamed "John Doe" defendants (collectively, "Defendants") alleging that Defendants had "conspired ... to defraud the County." In accordance with FATA's requirements, Qui Tam Plaintiffs filed their Complaint under seal and served the State and County with a copy on the day it was filed. After requesting and receiving two extensions of time to investigate the Complaint's allegations, the State and County filed a motion to unseal the case as well as a notice of declination to exercise their statutory right to intervene in the action. Two days later, the State and County jointly moved to dismiss Qui Tam Plaintiffs' Complaint with prejudice, contending that it was "absolutely barred" under either of two provisions of FATA: (1) Section 44-9-9(C), which provides that actions "based on allegations or transactions that are the subject of a ... civil ... proceeding in which the state or political subdivision is a party" are barred unless the attorney general or political subdivision "determines and certifies in writing that the action is in the interest of the state or political subdivision"; or (2) Section 44-9-9(D), which provides that "[u]pon motion of the attorney general or political subdivision, a court may, in its discretion, dismiss [a qui tam] action ... if the elements of the alleged false or fraudulent claim have been publicly disclosed[.]" According to the State and County, the Complaint was subject to dismissal under Section 44-9-9(C) because the allegations and transactions at issue in the Complaint were already the subject of a lawsuit filed by the County against the same investors and brokerage firms just one month before the Complaint was filed. Alternatively, the State and County argued that the Complaint was subject to dismissal under Section 44-9-9(D) because the alleged fraudulent conduct underlying Qui Tam Plaintiffs' FATA claims had been publicly disseminated through the media and in a governmental report in November 2014.

{3} The district court granted the State and County's dismissal motion under Section 44-9-9(D), upon finding that the elements of false or fraudulent claims in the Complaint had been publicly disclosed in news stories and the County's earlier-filed complaint and that the Complaint's allegations "mirror" and were "duplicative" of those made by the County in its lawsuit. Qui Tam Plaintiffs appeal from the district court's order of dismissal.

DISCUSSION

{4} The only issue we address in this case is whether the district court erred in dismissing Qui Tam Plaintiffs' Complaint under Section 44-9-9(D).

Section 44-9-9(D) provides in full:
Upon motion of the attorney general or political subdivision, a court may, in its discretion, dismiss an action brought pursuant to Section 44-9-5 ... if the elements of the alleged false or fraudulent claim have been publicly disclosed in the news media or in a publicly disseminated governmental report at the time the complaint is filed.

By its plain language, Section 44-9-9(D) allows, but does not require, a district court to dismiss a qui tam action based on a motion brought under that section if (1) the motion is made by the government, and (2) the district court finds that the elements of the qui tam action's false or fraudulent claims have been publicly disclosed prior to the action being brought. Id. ; cf. § 44-9-9(A)-(C) (providing no limitation as to who may move to bar an action from proceeding); State ex rel. Foy v. Austin Capital Mgmt., Ltd. , 2015-NMSC-025, ¶ 6, 355 P.3d 1 (considering a defendant's attempt to apply Section 44-9-9(B)'s bar).

{5} Qui Tam Plaintiffs do not challenge the district court's finding that the "elements of the alleged false or fraudulent claims presented in [Qui Tam Plaintiffs'] Complaint had been publicly disclosed in the news media and in a publicly available governmental report in the [County's c]omplaint at the time [Qui Tam Plaintiffs'] Complaint was filed." Instead, Qui Tam Plaintiffs argue that the district court erred by (1) interpreting Section 44-9-9(D) as an "absolute bar" to their lawsuit; (2) failing to take into account the best interests of the parties and the public purposes behind FATA; (3) dismissing the action without requiring the State and County to first intervene in the action, show good cause as to why dismissal should be granted, and present evidence to support their motion;

and (4) "overlooking" Section 44-9-7, which Qui Tam Plaintiffs argue provides a possible award to a qui tam plaintiff whose action is based primarily on information that has been publicly disclosed. While not entirely clear, Qui Tam Plaintiffs appear to argue that any of the foregoing errors alone, but certainly considered together, constituted an abuse of discretion by the district court, requiring reversal of the district court's order of dismissal and reinstatement of their Complaint.

Standard of Review

{6} As we have noted, Section 44-9-9(D) allows a district court to dismiss a FATA action "in its discretion" if certain elements are met. We review discretionary decisions for an abuse of discretion. In re N.M. Indirect Purchasers Microsoft Corp. , 2007-NMCA-007, ¶ 6, 140 N.M. 879, 149 P.3d 976. "We cannot say the district court abused its discretion by its ruling unless we can characterize the ruling as clearly untenable or not justified by reason." Valerio v. San Mateo Enters., Inc. , 2017-NMCA-059, ¶ 16, 400 P.3d 275 (alterations, internal quotation marks, and citation omitted). "When reasons both supporting and detracting from a decision exist, there is no abuse of discretion." In re Camino Real Envtl. Ctr., Inc. , 2010-NMCA-057, ¶ 23, 148 N.M. 776, 242 P.3d 343. A district court abuses its discretion "when it applies an incorrect standard, incorrect substantive law, or its discretionary decision is premised on a misapprehension of the law." Aragon v. Brown , 2003-NMCA-126, ¶ 9, 134 N.M. 459, 78 P.3d 913. "[E]ven when we review for an abuse of discretion, our review of the application of the law to the facts is conducted de novo. Accordingly, we may characterize as an abuse of discretion a discretionary decision that is premised on a misapprehension of the law." Harrison v. Bd. of Regents of the Univ. of N.M. , 2013-NMCA-105, ¶ 14, 311 P.3d 1236 (internal quotation marks and citations omitted).

I. Whether the District Court Interpreted Section 44-9-9(D) as an "Absolute Bar" to Qui Tam Plaintiffs' Lawsuit

{7} Qui Tam Plaintiffs first argue that "[t]he district court construed FATA as an absolute bar to [Qui Tam Plaintiffs'] lawsuit because [their] lawsuit incorporated some facts which had already been publicly reported." We understand Qui Tam Plaintiffs' argument to be that the district court misapprehended the discretionary aspect of its decision under Section 44-9-9(D) by adopting the arguments advanced by the State and County below, i.e., that Section 44-9-9(D) "preclude[s] the [district c]ourt's jurisdiction in this case" and "requires dismissal" if the district court found, as it did, that the elements of Qui Tam Plaintiffs' claims had been publicly disclosed. If, in fact, the district court interpreted Section 44-9-9(D) as an "absolute bar" to Qui Tam Plaintiffs' Complaint because the elements of fraud contained therein had been publicly disclosed, its dismissal would constitute an abuse of discretion. See Aragon , 2003-NMCA-126, ¶ 9, 134 N.M. 459, 78 P.3d 913 (noting that the district court's misapprehension of the law constitutes an abuse of discretion). However, for the reasons that follow, we disagree with Qui Tam Plaintiffs' characterization of the district court's order.

{8} Qui Tam Plaintiffs contend that the district court "agreed with the [State and County's] argument that [Qui Tam Plaintiffs'] lawsuit ... is absolutely barred under the applicable provisions of [FATA.]" In support of this assertion, Qui Tam Plaintiffs cite paragraph eleven of the district court's order. That paragraph merely quotes language from the State and County's motion to dismiss stating that Qui Tam Plaintiffs' Complaint "is absolutely barred under [FATA]." Nothing in the district court's findings and conclusions indicate that the court agreed with the statement or that it applied Section 44-9-9(D) as an absolute bar to Qui Tam Plaintiffs' suit. Indeed, the district court's order cites, in full, Section 44-9-9(D), including that portion providing that "a court may, in its discretion, dismiss an action." In our view, this indicates the district court's awareness that any decision to grant or deny the State and County's motion would involve an exercise of discretion. On appeal, "there is a presumption of correctness in the rulings and decisions of the [district] court[,] and the party claiming error must clearly show error." Best v. Marino , 2017-NMCA-073, ¶ 42, 404 P.3d 450 (internal quotation marks and citation omitted). We do not presume a district court applied an incorrect standard, particularly in the absence of any evidence in the record tending to support an appellant's bald assertion that it did. Cf. Robertson v. Carmel Builders Real Estate , 2004-NMCA-056, ¶ 25, 135 N.M. 641, 92 P.3d 653 (refusing to presume error on the part of the district court where the appellant had failed to show that the district court applied the wrong standard of proof). Here, Qui Tam Plaintiffs have pointed to nothing in the record indicating that the district court misapprehended the discretionary nature of a dismissal under Section 44-9-9(D). We, therefore, reject Qui Tam Plaintiffs' contention that the district court erred by interpreting Section 44-9-9(D) as an absolute bar.

II. Whether the District Court Erred by Failing to Take Into Account the "Best Interests of the Parties and the Public Purposes Behind FATA"

{9} Qui Tam Plaintiffs next contend that the district court failed to "comply with" Section 44-9-5(A) when it dismissed their Complaint under Section 44-9-9(D). Section 44-9-5(A) states that "[o]nce filed, [a qui tam] action may be dismissed only with the written consent of the court, taking into account the best interest of the parties involved and the public purposes behind [FATA]." According to Qui Tam Plaintiffs, the district court "dismissed the case without taking into account the best interests of the parties involved ... and the public purposes of the statute, such as exposing corruption by public officials like Mr. Padilla." The record does not support Qui Tam Plaintiffs' contention but rather demonstrates that the district court considered-and rejected-the "multiple advantages" that Qui Tam Plaintiffs' claimed their lawsuit afforded over the action previously brought by the County. We explain.

{10} Qui Tam Plaintiffs contended that the district court should not grant the motion to dismiss because their Complaint (1) offered numerous litigation advantages over the County's approach to recovering its $17 million loss, and/or (2) sought to expose public corruption and hold those engaged in public corruption accountable where the County's lawsuit did not. In urging the district court not to dismiss their Complaint, Qui Tam Plaintiffs argued that they had "brought to the table ... a new theory, a better theory" that was "worth three times as much" as the County's lawsuit based on FATA's treble damages provision. Regarding the first contention, Qui Tam Plaintiffs argued that the multiple "advantages" offered in their FATA suit included that: Qui Tam Plaintiffs' FATA Complaint was neither removable to federal court nor subject to arbitration; Defendants were subject to treble damages, joint and several liability, attorney fees, and a civil penalty of between $5,000 and $10,000 per violation; and the FATA claims had to be proven only by a preponderance of the evidence rather than clear and convincing evidence. As to the second contention, Qui Tam Plaintiffs noted that their lawsuit brought claims under FATA and against Padilla individually, neither of which was included in the County's lawsuit. Qui Tam Plaintiffs claimed that they "brought ... some additional information about Mr. Padilla[,]" which should allow their FATA claims to proceed. For those two reasons, Qui Tam Plaintiffs asked the district court to deny the motion to dismiss "or hold it in abeyance and require the County and the State to take reasonable steps to preserve th[e FATA] claims, in case the [County's lawsuit] doesn't work out."

{11} The record indicates that the district court considered each of Qui Tam Plaintiffs' arguments but ultimately was not persuaded that it should either hold the motion in abeyance or allow Qui Tam Plaintiffs' action to proceed under the facts and circumstances presented to it. The district court initially appeared receptive to Qui Tam Plaintiffs' arguments that it was in the "best interests of the public, ... [the] County and the State" to allow their Complaint to proceed because of the financial and strategic advantages offered by FATA, particularly with respect to Qui Tam Plaintiffs' claim that their FATA lawsuit had a potential recovery of $51 million compared to a recovery of only $17 million in the County's lawsuit. On this score, the district court inquired into the damages available in the County's lawsuit and ordered the parties to submit additional briefing to "better inform[ ]" the court regarding what the County's lawsuit "is likely to result in" and what its "limitations are." The district court wished to be so informed to "make sure that the public interest is going to be protected and served." The State and County's supplemental brief stated that the County was pursuing not only treble damages through its Unfair Practices Act claims, but also punitive damages through its common law claims. Qui Tam Plaintiffs, on the other hand, continued to assert in their supplemental brief that the County's recovery in its lawsuit was limited to $17 million while recoverable damages would be $51 million under FATA. Based on all of the information, the district court ultimately found that the County's lawsuit "was substantially similar" to Qui Tam Plaintiffs' qui tam action and concluded that the County was already pursuing the claims related to the County's $17 million loss that was also the subject of Qui Tam Plaintiffs' action.

{12} Addressing the "additional information about Mr. Padilla" that Qui Tam Plaintiffs "brought" in support of their FATA claims, the district court noted that the "additional information" consisted of nothing more than allegations related to a single lunch meeting that Foy-at the relevant time, the vice president of finance at Security Federal Savings and Loan Association-claimed he had with Padilla somewhere between 1989 and 1992 (i.e., during Padilla's first term as Bernalillo County Treasurer) during which Padilla allegedly made an improper demand of Foy for a loan for a relative of Padilla. The district court found that Qui Tam Plaintiffs "fail[ed] to explain how the 23[-]year[-]old allegations have any bearing to the present case, or to the present Defendants." The court further found that with the exception of the lunch-meeting-related allegations, all of the allegations of fraud in Qui Tam Plaintiffs' Complaint "mirror[ed]" those that had already been publicly disclosed. In other words, "taking into account the ... public purposes behind [FATA]," the district court found the "additional information" brought by Qui Tam Plaintiffs insufficient to counsel in favor of allowing the action to proceed. Section 44-9-5(A).

{13} From the foregoing, it is clear that Qui Tam Plaintiffs' contention that the district court merely "rubber stamp[ed]" the State and County's motion to dismiss without regard for FATA's purpose is without merit. The fact that the district court was ultimately unconvinced by Qui Tam Plaintiffs' arguments that the best interest of the parties and the public purposes behind FATA weigh against dismissal of their Complaint and, therefore, exercised its discretion in the State and County's favor does not, without more, constitute an abuse of discretion. See In re Camino Real Envtl. Ctr., Inc. , 2010-NMCA-057, ¶ 23, 148 N.M. 776, 242 P.3d 343 ("When reasons both supporting and detracting from a decision exist, there is no abuse of discretion."). We, therefore, reject Qui Tam Plaintiffs' contention that the district court erred by failing to properly consider the parties' best interests or FATA's public purposes.

III. Whether the State and County Were Required to Intervene, Show Good Cause, and Present Evidence to Support Their Motion for the District Court to be Able to Consider and Grant the Motion to Dismiss Under Section 44-9-9(D)

{14} Qui Tam Plaintiffs also argue that FATA allows the government to seek dismissal of qui tam actions "only if they (A) file a motion to intervene, (B) with a showing of good cause, [and] (C) with admissible evidentiary proof, rather than unsupported and conclusory statements[.]" Qui Tam Plaintiffs rely on Section 44-9-6 to support their contention that when the government moves for dismissal under Section 44-9-9(D), it must first satisfy other FATA provisions-in particular, Section 44-9-6(B) and (F)-before the district court may grant dismissal. Section 44-9-6 provides in pertinent part:

B. The state or political subdivision may seek to dismiss the action for good cause notwithstanding the objections of the qui tam plaintiff if the qui tam plaintiff has been notified of the filing of the motion and the court has provided the qui tam plaintiff with an opportunity to oppose the motion and to present evidence at a hearing.
....
F. If the state or political subdivision elects not to proceed with the action, the qui tam plaintiff shall have the right to conduct the action. If the attorney general or political subdivision so requests, the qui tam plaintiff shall serve the attorney general or political subdivision with copies of all pleadings filed in the action and all deposition transcripts in the case, at the state's or political subdivision's expense. When the qui tam plaintiff proceeds with the action, the court, without limiting the status and rights of the qui tam plaintiff, may permit the attorney general or political subdivision to intervene at a later date upon a showing of good cause.

Qui Tam Plaintiffs attempt to import Section 44-9-6's procedural requirements and "good cause" standards into Section 44-9-9(D), contending that dismissals under Section 44-9-9(D) must satisfy the requirements of Section 44-9-6 in addition to Section 44-9-9(D)'s specific dismissal requirements. Qui Tam Plaintiffs' argument runs afoul of well-established rules of statutory construction.

{15} "The first guiding principle in statutory construction dictates that we look to the wording of the statute and attempt to apply the plain meaning rule, recognizing that when a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation." United Rentals Nw., Inc. v. Yearout Mech., Inc. , 2010-NMSC-030, ¶ 9, 148 N.M. 426, 237 P.3d 728 (alteration, internal quotation marks, and citation omitted). We are mindful that we must "exercise caution in applying the plain meaning rule" because "[i]ts beguiling simplicity may mask a host of reasons why a statute, apparently clear and unambiguous on its face, may for one reason or another give rise to legitimate (i.e., nonfrivolous) differences of opinion concerning the statute's meaning." State ex rel. Helman v. Gallegos , 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352. Particularly when construing an individual statutory section within a comprehensive act, we must "examine the overall structure of the act and consider each section's function within the comprehensive legislative scheme." Britton v. Office of the Attorney Gen. , 2019-NMCA-002, ¶ 27, 433 P.3d 320. However, even in doing so, "[w]e will not depart from the plain wording of a statute, unless it is necessary to resolve an ambiguity, correct a mistake or an absurdity that the Legislature could not have intended, or to deal with an irreconcilable conflict among statutory provisions." Regents of the Univ. of N.M. v. N.M. Fed'n of Teachers , 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236. "In the absence of some statutory construction consideration that requires us to do so, we do not read into a statute language ... that the Legislature has not included." Provisional Gov't of Santa Teresa v. Doña Ana Cty. Bd. of Cty. Comm'rs , 2018-NMCA-070, ¶ 17, 429 P.3d 981 ; see Regents of the Univ. of N.M. , 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236 (explaining that appellate courts "will not read into a statute ... language which is not there, particularly if it makes sense as written" (internal quotation marks and citation omitted)). Finally, "when the Legislature includes a particular word in one portion of a statute and omits it from another portion of that statute, such omission is presumed to be intentional." State v. Jade G. , 2007-NMSC-010, ¶ 28, 141 N.M. 284, 154 P.3d 659.

{16} As previously stated, Section 44-9-9(D), the section at issue here, provides:

Upon motion of the attorney general or political subdivision, a court may, in its discretion, dismiss an action brought pursuant to Section 44-9-5 ... if the elements of the alleged false or fraudulent claim have been publicly disclosed in the news media or in a publicly disseminated governmental report at the time the complaint is filed.

Plainly, Section 44-9-9(D) as written does not contain as prerequisites to dismissal that the government intervene in the action, establish good cause for dismissal, and present evidence to support its request. Qui Tam Plaintiffs would have us read into Section 44-9-9(D) requirements not only that are not there but also that we must presume the Legislature intentionally omitted. See Jade G. , 2007-NMSC-010, ¶ 28, 141 N.M. 284, 154 P.3d 659 (explaining that "when the Legislature includes a particular word in one portion of a statute and omits it from another portion of that statute, such omission is presumed to be intentional"). Qui Tam Plaintiffs do so without suggesting, much less demonstrating, that Section 44-9-9(D) does not make sense as written nor do they identify a statutory construction consideration (e.g., the need to resolve an ambiguity or a conflict between provisions) that would permit us to look to-and import-any other FATA provision(s) in order to effectuate Section 44-9-9(D)'s intent.

{17} FATA, while a comprehensive act whose sections are to be construed harmoniously, sets forth separate provisions that cannot be indiscriminately interchanged and imported across statutory sections as Qui Tam Plaintiffs attempt to do. Section 44-9-9(D) is a stand-alone proviso, allowing the district court, "in its discretion," to dismiss a qui tam plaintiff's FATA action if the government moves for dismissal and establishes that the elements of the qui tam plaintiff's fraud claims have been publicly disclosed. Id. The district court did not err by granting the State and County's motion to dismiss without first requiring the State and County to comply with Section 44-9-6's standards and requirements.

IV. The District Court Did Not Err By "Overlooking" Section 44-9-7 in Determining Whether to Dismiss Qui Tam Plaintiffs' Complaint

{18} Qui Tam Plaintiffs additionally invoke another of FATA's provisions-Section 44-9-7-to support its argument that the district court erred in granting dismissal. As Qui Tam Plaintiffs frame their argument, Section 44-9-7 "deals with the present situation, where [a] qui tam plaintiff files a complaint that is based on (a) some facts that are known to the news media or government, and (b) some facts and theories that were not known." Qui Tam Plaintiffs assert that under circumstances such as those presented here, "FATA's solution is to authorize a possible reduction in the qui tam[ plaintiff]s' statutory share" rather than bar the action from proceeding. Thus, they argue, the district court "overlooked" Section 44-9-7, leading it to misinterpret Section 44-9-9(D) and erroneously dismiss their action. Again, Qui Tam Plaintiffs offer a strained construction of FATA, this time reflecting a misunderstanding of the interplay between Section 44-9-7 and Section 44-9-9(D).

{19} Section 44-9-7 governs the manner in which proceeds recovered through qui tam actions are to be distributed between the qui tam plaintiff and the government. Section 44-9-7(A)(1) provides that when the government litigates the action, the qui tam plaintiff shall receive between fifteen and twenty-five percent of the proceeds recovered, "depending upon the extent to which the qui tam plaintiff substantially contributed to the prosecution of the action[.]" Section 44-9-7(A)(2) reduces the qui tam plaintiff's share to no more than ten percent of proceeds recovered in cases where "the court finds that the action was based primarily on disclosures of specific information, not provided by the qui tam plaintiff, relating to allegations or transactions ... from the news media[.]" According to Qui Tam Plaintiffs, "Section 44-9-7 anticipates there will be cases where qui tam plaintiffs incorporate some public facts into their complaints." With this much, we agree. However, we do not agree with the conclusion Qui Tam Plaintiffs draw from this mere possibility: that the Legislature enacted Section 44-9-7's "sliding scale of rewards[,]" as they describe it, as an alternative to "barring such actions absolutely[.]" To read Section 44-9-7 as Qui Tam Plaintiffs do-i.e., as a "solution" to the "problem" of qui tam actions whose claims are based on publicly disclosed information-renders Section 44-9-9(D) superfluous. If the Legislature intended to allow all actions that incorporate publicly disclosed information to proceed and to merely limit the qui tam plaintiff's recovery in those cases, it would not have enacted Section 44-9-9(D).

{20} We must read Section 44-9-7 and Section 44-9-9(D) in a manner that gives effect to both provisions, which Qui Tam Plaintiffs' construction does not. See Diamond v. Diamond , 2012-NMSC-022, ¶ 25, 283 P.3d 260 ("When interpreting a statute, all sections of the statute must be read together so that all parts are given effect." (internal quotation marks and citation omitted)); Blue Canyon Well Ass'n v. Jevne , 2018-NMCA-004, ¶ 9, 410 P.3d 251 ("We interpret statutes to avoid rendering the Legislature's language superfluous." (internal quotation marks and citation omitted)). The proper way to understand Section 44-9-7 in relation to Section 44-9-9(D) is that in cases where a district court exercises its discretion under Section 44-9-9(D) and allows a qui tam action to proceed, Section 44-9-7 may serve to limit the potential recovery of the qui tam plaintiff. Section 44-9-7 in no way prohibits the district court from granting a motion to dismiss under Section 44-9-9(D).

V. Qui Tam Plaintiffs Have Failed to Demonstrate That the District Court Abused Its Discretion in Dismissing Their Complaint

{21} In the absence of any indication that the district court misapprehended the applicable sections of FATA in exercising its discretion and dismissing the Complaint, we need only resolve whether the appealed ruling "exceeds the bounds of all reason or is arbitrary, fanciful, or unreasonable." Kilgore v. Fuji Heavy Indus. Ltd. , 2009-NMCA-078, ¶ 39, 146 N.M. 698, 213 P.3d 1127 (internal quotation marks and citation omitted). Qui Tam Plaintiffs' points on appeal fail to supply justification for reversal under this governing review standard. After conceding that the elements of their allegations of false and fraudulent claims were based on publicly disclosed information-a concession which, under the plain language of Section 44-9-9(D), triggered a dismissal option at the district court's discretion-Qui Tam Plaintiffs proffered myriad arguments below as to why the district court should allow their action to continue. The record establishes that the court simply did not find any of Qui Tam Plaintiffs' arguments persuasive. Our jurisprudence makes clear that a district court's exercise of its discretion is ill-suited for second-guessing by an appellate tribunal. Qui Tam Plaintiffs nevertheless continue to make the same arguments to this Court and ask us to reach a different conclusion. We decline to do so. See State v. United Bonding Ins. Co. , 1970-NMSC-017, ¶ 22, 81 N.M. 154, 464 P.2d 884 ("Absent a clear abuse of discretion, [an appellate] court cannot interpose a different result even should it have a different view of the matter.").

{22} The fact that the district court's ruling is one that involves matters of public interest does not compel or justify our departure from the standards that guide our review of discretionary rulings and the fact-finding that underpins them. On the record and arguments before us, we cannot say that the district court's decision to grant the motion to dismiss was clearly untenable or not justified by reason. We, therefore, affirm the district court's ruling in this instance.

CONCLUSION

{23} For the foregoing reasons, we affirm the district court's order of dismissal.

{24} IT IS SO ORDERED.

WE CONCUR:

LINDA M. VANZI, Judge

JULIE J. VARGAS, Judge

      A "qui tam action" is "an action that allows a private person to sue for a penalty, part of which the government will receive." N.M. State Inv. Council v. Weinstein , 2016-NMCA-069, ¶ 7, 382 P.3d 923 (alteration, omission, internal quotation marks, and citation omitted).

      See NMSA 1978, § 57-12-10(B) (2005) (providing that "[w]here the trier of fact finds that the party charged with an unfair or deceptive trade practice or an unconscionable trade practice has willfully engaged in the trade practice, the court may award up to three times actual damages or three hundred dollars ($300), whichever is greater, to the party complaining of the practice").

      Qui Tam Plaintiffs alleged that, "During the lunch, after some pleasantries, Mr. Padilla stated that the reason he wanted a lending officer at the meeting was because Security Federal had refused to make a loan to Mr. Padilla's brother or brother-in-law. (Mr. Foy does not recall which, but it was a relative of Mr. Padilla's.) Mr. Padilla suggested that Security Federal should reconsider its refusal to make a loan to his relative. Mr. Padilla said that if Security Federal made the loan, he would make sure that [the] County invested money in Security Federal CDs."

      We note that Qui Tam Plaintiffs' assertion that the government is required to support any motion to dismiss a FATA action with "admissible evidentiary proof" rests on a misreading of Section 44-9-6(B). That Section 44-9-6(B) affords qui tam plaintiffs "an opportunity to ... present evidence" does not somehow impose on the government a corresponding obligation to present evidence in support of its motion to dismiss under Section 44-9-9(D). We note, however, that the State and County indeed offered "evidence" in the way of the 2014 news articles, of which the district court took judicial notice, to establish Section 44-9-9(D)'s threshold requirement to dismissal: that the elements of Qui Tam Plaintiffs' Complaint had been publicly disclosed.