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    MCGREE CORPORATION and Republic Services of Montana, Petitioners and Appellants, v. MONTANA PUBLIC SERVICE COMMISSION, Respondent and Appellee, and L&L Site Services, Inc., Intervenor and Appellee.
    DA 18-0230
    Supreme Court of Montana.
    Submitted on Briefs: January 9, 2019 Decided: April 2, 2019
    For Appellants: Kyle A. Gray, Brianne C. McClafferty, Holland & Hart LLP, Billings, Montana, Jacqueline Papez, Doney Crowley P.C., Helena, Montana
    For Appellee Montana Public Service Commission: Justin Kraske, Jeremiah Langston, Montana Public Service Commission, Helena, Montana
    For Intervenor and Appellee L&L Site Services, Inc.: Alison Garab, Western Roots Law, PLLC, Belgrade, Montana, Dennis Lopach, Dennis R. Lopach, PC, Helena, Montana
   Justice Beth Baker delivered the Opinion of the Court.

¶1 McGree Corporation and Republic Services of Montana petitioned the Second Judicial District Court, Butte-Silver Bow County, to review the Public Service Commission's final order granting L&L Site Services, Inc.'s application for a Class D motor carrier certificate of public convenience and necessity. The District Court affirmed the Commission's final order, holding that the Commission properly considered competition in determining whether public convenience and necessity required the authorization of additional garbage collection service. McGree and Republic appeal. We affirm on each of the following restated issues:

1. Whether the Commission properly considered competition in determining public convenience and necessity under § 69-12-323(2), MCA ;
2. Whether substantial evidence supported the Commission's decision to grant a Class D permit to L&L; and
3. Whether the Commission should have engaged in rulemaking under the Montana Administrative Procedure Act (MAPA) before adopting a new standard.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 L&L Site Services, Inc., is a waste-hauling business operating in Montana. It has had a limited Class D certificate since 2007 to haul construction debris in Gallatin County and in those parts of Madison County within twenty miles of Big Sky, Montana. The Commission denied an application from L&L in 2011 to expand its operation into general residential and commercial garbage hauling. L&L filed another application for a full Class D certificate on May 20, 2015, to provide service throughout both Gallatin and Madison Counties.

¶3 The Commission published notice of L&L's second application to expand into commercial and residential garbage hauling in July 2015. McGree and Republic filed protests with the Commission against the application. McGree holds a Class D certificate to haul garbage within an eighty-mile radius of Whitehall, Montana. Republic hauls garbage in Gallatin and Madison Counties under a Class D certificate.

¶4 Before the hearing on the petition, the parties stipulated that L&L is fit to provide the proposed service. The Commission held a three-day hearing in November 2015 to hear testimony regarding public convenience and necessity. L&L presented eleven witnesses in support of its petition-nine of whom were "shippers" or customers. Republic presented nine witnesses in opposition. McGree presented no witnesses.

¶5 After post-hearing briefing, the Commission, on a 3-2 vote, approved L&L's application for all of Gallatin County, but limited the permit for Madison County to places accessible from Highway 64 serving the Big Sky, Moonlight Basin, and Yellowstone Club areas. The Commission issued its final order in March 2016. McGree and Republic filed a timely Petition for Judicial Review with the District Court. Following briefing and oral argument on the petition, the District Court affirmed the Commission's final order in December 2017. Additional relevant facts are discussed below.

STANDARDS OF REVIEW

¶6 "In an administrative appeal, we apply the same standards of review that the district court applies." Nw. Corp. v. Mont. Dep't of Pub. Serv. Regulation , 2016 MT 239, ¶ 25, 385 Mont. 33, 380 P.3d 787. Section 2-4-704, MCA, governs administrative appeals. An agency's interpretation of a statute is a conclusion of law that we review de novo. Nw. Corp. , ¶ 25. We review its findings of fact for clear error. Nw. Corp. , ¶ 25.

¶7 The court may reverse or modify an agency decision if the "substantial rights of the appellant" were prejudiced because the administrative findings are "in violation of ... statutory provisions," "made upon unlawful procedure," "affected by other error of law," "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record," or "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Section 2-4-704(2)(a)(i), (iii), (iv), (v), (vi), MCA.

¶8 "The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Section 2-4-704(2), MCA. "A finding of fact is clearly erroneous if it is not supported by substantial evidence in the record, if the fact-finder misapprehended the effect of the evidence, or if a review of the record leaves the court with a definite and firm conviction that a mistake has been made." Williamson v. Mont. Pub. Serv. Comm'n , 2012 MT 32, ¶ 25, 364 Mont. 128, 272 P.3d 71.

DISCUSSION

¶9 1. Whether the Commission properly considered competition in determining public convenience and necessity under § 69-12-323(2), MCA.

¶10 The disagreement between the parties centers on when the Commission may consider competition in determining whether public convenience and necessity requires the granting of an application for a Class D motor carrier certificate. McGree and Republic maintain that the Commission may not consider competition until after it has determined that there is a public need for the proposed services. They argue that this is because the statute favors maintenance of the existing service providers to ensure stable service. McGree and Republic point out that this Court determined in Baker Sales Barn, Inc. v. Mont. Livestock Comm'n , 140 Mont. 1, 10, 367 P.2d 775, 780 (1962), that "convenience and necessity are not synonymous." They argue that a desire for competition goes to convenience, not to necessity; therefore, the Commission must find that there is a public need for the additional proposed service before it can consider any potential benefits from competition.

¶11 McGree and Republic argue that our decision in Waste Management Partners of Bozeman, Ltd. v. Montana Department of Public Service Regulation , 284 Mont. 245, 944 P.2d 210 (1997), further bolsters their position. They argue that in Waste Management Partners , this Court endorsed as the "correct standard" a framework in which the Commission first determined that there was public need before considering competition. Waste Mgmt. Partners , 284 Mont. at 251, 944 P.2d at 214. McGree and Republic point out that in the 2011 denial of L&L's prior application, the Commission itself stated that "competition can only be considered after need has been established by the applicant." In re L&L Site Servs., Inc. , No. T-10.36.PCN, Or. 7147, ¶ 97, (Mont. Pub. Serv. Comm'n May 23, 2011). McGree and Republic argue that the Commission improperly relied on legislative history to reinterpret the statute contrary to this Court's conclusive interpretation in Waste Management Partners .

¶12 The Commission and L&L respond that the plain language of § 69-12-323(2)(b), MCA, does not mandate at what point the Commission may consider competition when determining whether public convenience and necessity require the granting of a Class D application. Rather, whether and when to consider competition is left to the sound discretion of the Commission, and the exercise of such discretion is dependent on the facts and circumstances of each application.

¶13 In its final order granting L&L's application on appeal here, the Commission explained that it previously had declined to consider competition before determining public need for the additional service. "Despite this," it continued, "the Commission will consider competition in addressing public need in this case." Relying on the plain language of the statute, the Commission reasoned that "[a]n interpretation that precludes consideration of one component of determination of public convenience and necessity (i.e. , need) does violence to the statute." It concluded that "[i]n this case, competition and need are related concepts," noting that, based on the evidence presented to the Commission, "a consideration of competition serves to establish need and lack of willingness of an incumbent to provide service absent the prospect or reality of competition." The Commission went on to explain that the legislative history of the statute also supported this interpretation.

¶14 We first turn to the statute at issue. As we recognized in Waste Management Partners , "the legislature has chosen to partially regulate the garbage industry in Montana." Waste Mgmt. Partners , 284 Mont. at 251, 944 P.2d at 214. The Commission regulates the garbage hauling industry in Montana primarily through its regulation of entry of new providers into the market. See Title 69, chapter 12, MCA. Motor carriers are divided into five classes; Class D motor carriers are those operating motor vehicles transporting garbage. Section 69-12-301(5), MCA. A motor carrier may not haul garbage in Montana without first obtaining a Class D certificate from the Commission. Section 69-12-314, MCA. Section 69-12-323(2)(a), MCA, requires the Commission to issue a Class D certificate to an applicant if "public convenience and necessity require the authorization of the service proposed or any part of the service proposed." In determining whether to issue a permit, the Commission must consider:

(i) the transportation service being furnished or that will be furnished by any railroad or other existing transportation agency;
(ii) the likelihood of the proposed service being permanent and continuous throughout 12 months of the year; and
(iii) the effect that the proposed transportation service may have on other forms of transportation service that are essential and indispensable to the communities to be affected by the proposed transportation service or that might be affected by the proposed transportation service.

Section 69-12-323(2)(a), MCA. The statute does not define public convenience or necessity, but provides three factors the Commission must consider. We have explained previously that an agency need not "adopt rigid rules defining" public convenience and necessity, "[b]ecause the determination of public convenience and necessity involves such a fact-intensive inquiry." Ramage v. Dep't of Revenue , 236 Mont. 69, 73, 768 P.2d 864, 866 (1989). The Commission uses the three-part framework from the Interstate Commerce Commission's decision in In re Pan-American Bus Lines Operation , 1 M.C.C. 190, 203 (I.C.C. 1936), as a guide in determining public convenience and necessity. Waste Mgmt. Partners , 284 Mont. at 254, 944 P.2d at 216. That framework asks: (1) "whether the new operation or service will serve a useful public purpose, responsive to a public demand or need"; (2) whether existing carriers "can and will" serve that public purpose without the new operation or service; and (3) whether the new operation or service can serve that useful public purpose "without endangering or impairing the operations of existing carriers contrary to the public interest." Waste Mgmt. Partners , 284 Mont. at 254, 944 P.2d at 216 (quoting In re Pan-Am. Bus Lines Operation , 1 M.C.C. at 203).

¶15 In addition, § 69-12-323(2)(b), MCA, authorizes, but does not require, the Commission to consider competition when determining public convenience and necessity on applications for Class D certificates. That section provides: "For the purposes of issuing a certificate of public convenience and necessity to a Class D motor carrier, a determination of public convenience and necessity may include a consideration of competition." Section 69-12-323(2)(b), MCA. Through § 69-12-323(2)(b), MCA, the Legislature "has given the [Commission] the discretion to consider competition in order to handle potential harmful monopoly situations." Waste Mgmt. Partners , 284 Mont. at 251, 944 P.2d at 214. "[C]ompetition in the abstract is insufficient standing alone to justify granting an application. Rather, there must be sufficient evidence in the record based upon the specific facts at hand to establish public convenience and necessity." Waste Mgmt. Partners , 284 Mont. at 257, 944 P.2d at 218. "Consideration of competition may be beneficial in some cases, although certainly not in all cases." Waste Mgmt. Partners , 284 Mont. at 251, 944 P.2d at 214.

¶16 We will not consider legislative history when the plain language of the statute is clear. Mont. Vending, Inc. v. Coca-Cola Bottling Co. of Mont. , 2003 MT 282, ¶ 21, 318 Mont. 1, 78 P.3d 499. The plain language of § 69-12-323(2)(b), MCA, puts no limitation on when the Commission may consider competition. It states simply that "a determination of public convenience and necessity may include a consideration of competition." Section 69-12-323(2)(b), MCA. Read together, subsection 2(a) lists three statutory factors that the Commission must consider in determining public convenience and necessity, and subsection 2(b) allows the Commission to consider the benefits of competition in its determination.

¶17 The parties stipulated that L&L was fit to provide the proposed services under the second statutory factor, § 69-12-323(2)(a)(ii), MCA.

The Pan-American Bus Lines framework the Commission uses provides a structure for the Commission to determine the factors set forth in § 69-12-323(2)(a)(i) and (iii), MCA. We find nothing in the plain language of the statute that requires the Commission to determine that there is a public need for additional service before considering competition.

¶18 Our prior caselaw does not contradict this plain-language reading of the statute. First, Appellants' reliance on Baker to argue that competition may be considered only as part of the factors going to "convenience," but not to "necessity," is belied by the language of § 69-12-323(2)(b), MCA, which states that "a determination of public convenience and necessity may include a consideration of competition." (Emphasis added). McGree and Republic argue that this Court nonetheless approved the consideration of competition only after an applicant has established that there is public need for additional service. Contrary to McGree and Republic's contentions, however, nothing in Waste Management Partners precludes the Commission from considering competition during any part of its analysis.

¶19 In Waste Management Partners , existing garbage hauling services protested an application for a new Class D certificate in their service area. They argued that the statute did not allow the Commission to consider any benefits of competition until it first determined that the existing services were inadequate, that there would be no economic impairment to the existing services, and that the applicant was fit to provide the additional service. Waste Mgmt. Partners , 284 Mont. at 251, 944 P.2d at 214. We rejected this argument. Our analysis laid out a more holistic approach, relying on the requirements of the statute itself. We explained that "the issue is whether under the particular factual circumstance of the case, competition would impose undue hardship and impair the existing transport's ability to provide service to an extent contrary to public interest." Waste Mgmt. Partners , 284 Mont. at 251-52, 944 P.2d at 214. Such a determination "can only be decided on a case-by-case basis in conjunction with a consideration of the other elements" of the analysis. Waste Mgmt. Partners , 284 Mont. at 252, 944 P.2d at 214. The statute "placed no limits on the order in which the [Commission] must evaluate competition," and competition is not "a stand-alone controlling element, but rather ... one factor in the context of the principles of motor carrier regulation." Waste Mgmt. Partners , 284 Mont. at 252, 944 P.2d at 214.

¶20 Neither the plain language of the statute nor our interpretation of it in Waste Management Partners puts any limitation on when the Commission can consider competition. Rather, we identified limits on the Commission's substantive consideration of competition, explaining that it cannot rely on the benefits of "competition in the abstract ... to justify granting an application." Waste Mgmt. Partners , 284 Mont. at 257, 944 P.2d at 218. Instead, "there must be sufficient evidence in the record based upon the specific facts at hand to establish public convenience and necessity." Waste Mgmt. Partners , 284 Mont. at 257, 944 P.2d at 218. Such circumstances include the existence of unmet demand, inadequate service, and unreasonable rates. See Waste Mgmt. Partners , 284 Mont. at 257, 944 P.2d at 218 ; Rozel Corp. v. Dep't of Pub. Serv. Regulation , 226 Mont. 237, 239, 735 P.2d 282, 284 (1987). Thus, the evidence supporting an application likely will include the nature and adequacy of the service from existing carriers.

¶21 As the District Court stated in its order affirming the Commission's decision,

[T]he [Commission] evaluated the evidence in this particular case and found that need was established. The decision to grant the application was based upon analysis of need considered with the aspect of competition. The application was not granted purely based upon the need for competition for competition's sake. The application was granted pursuant to the applicable law based upon the [Commission's] weighing of the factual testimony.

Based on the plain language of the statute, we hold that the Commission did not err in considering competition in determining whether public convenience and necessity required the granting of an additional Class D certificate to L&L.

¶22 2. Whether substantial evidence supports the Commission's decision to grant a Class D permit to L&L.

¶23 McGree and Republic next argue that the Commission lacked substantial evidence to support its determination that there was public need for additional service. This argument has two parts. First, McGree and Republic maintain that some of the Commission's findings were in clear error, because the Commission misapprehended the effect of the evidence before it. Second, they maintain that L&L failed to present sufficient evidence that showed public need for additional service.

¶24 Regarding their first argument, McGree and Republic insist that the Commission failed to recognize or properly consider the existing competition in most of the relevant areas between Republic, McGree, and the City of Bozeman. They argue further that the Commission misapprehended the testimony from Republic's witnesses Jason Vietch and Kristin Mitchell to conclude that Republic's target operating margin for the Bozeman area far exceeds a reasonable rate of return. In addition to the Commission's misapprehension of the evidence that was presented, McGree and Republic maintain that L&L failed to present sufficient evidence to support its application. They contend that L&L did not perform an analysis of the market, but only speculated about growth in the area. Of L&L's nine shipper witnesses, they contend that only one testified he currently could not receive garbage hauling services from existing carriers. They maintain that none of the complaints from the other shipper witnesses were as egregious as those before the Commission in Waste Management Services .

¶25 This Court has recognized that public need is not simply unmet demand, but also includes a need for reasonable pricing and better customer service. Waste Mgmt. Partners , 284 Mont. at 255, 944 P.2d at 216 (explaining that the Commission properly granted an application for additional service when "competition in this case will promote the public interest in improving services and perhaps rates, and filling consumer needs that [the existing carrier] failed to meet"). In its decision on L&L's application, the Commission determined from the evidence it heard that there was a public need for fair pricing and better customer service, as well as an inability to receive services.

¶26 In regard to inability to receive services, the Commission relied on the testimony from Charles Immenschuh, who was unable to get services for his outfitting business after contacting Republic on four separate occasions. Immenschuh testified that he had to self-haul because he had no other options for service. The Commission also found based on evidence from both L&L and Republic that there is considerable growth occurring in the Bozeman and Big Sky areas and that the "raw number of new customers is substantially larger than what existed during L&L's last application." In regard to a need for better customer service, the Commission relied on testimony from shipper witnesses and a current Republic driver. The Commission noted service complaints from several shipper witnesses. It highlighted the testimony of Rocky Nelson, the senior director of facilities at the Yellowstone Club. Nelson testified that customer service to the Yellowstone Club improved after Nelson signed an affidavit in support of L&L's application. The Commission concluded that these customer service improvements would not have occurred "so expediently or efficiently" without the threat of competition. The Commission acknowledged Republic's arguments that these are isolated incidents and not pervasive or systemic issues. The Commission found, however, that the testimony from one of Republic's own drivers demonstrated that the customer service issues were systemic. Robert Webb testified and provided photographs to support L&L's claim that Republic provided substandard service, such as skipped pickups, containers not being emptied, containers not placed back in the proper place or placed in an unsafe manner, and drivers failing to heed the requests of customers. The Commission explained that "[t]his testimony depicts a company failing to control or incentivize its employees to meet the requests of its customers suggesting a need for better customer service than what is currently being provided."

¶27 In finding that there was a need for more reasonable rates, the Commission explained that "Republic's profit margin serves as an example of need for more reasonable rates," relying on the testimonies from Vietch and Mitchell. McGree and Republic argue that the Commission misapprehended the effect of Vietch's and Mitchell's testimonies. Upon questioning from Vice Chair Travis Kavulla, Vietch, Republic's operations manager for the Bozeman area, testified that 22 percent of Republic's revenue is net income. Vice Chair Kavulla later questioned Republic's expert Mitchell, the executive director of the Oregon Refuse and Recycling Association, about the operating margins typically allowed by localities in the rate-setting process in Oregon. Mitchell testified that she had seen "ranges that go 8 to 12" percent. But she qualified her answer, saying that because the numbers are "based on allowable costs" in each area, the margins were "difficult to compare. It's not apples to apples." We agree with McGree and Republic that the Commission misapprehended the effect of this testimony. Without further information about what was included in those figures, the Commission could not compare the rates cited by Mitchell with those cited by Vietch. The Commission's reliance on this misapprehension to determine there was a need for more reasonable rates was clear error.

¶28 The misapprehension of this evidence alone, however, does not require reversal. We examine whether the remaining "reliable, probative, and substantial evidence on the whole record" supports the Commission's finding of public need in its determination of public convenience and necessity.

Section 2-4-704(2)(a)(v), MCA. "Substantial evidence is more than a mere scintilla of evidence but may be less than a preponderance of the evidence." Peretti v. Dep't of Revenue , 2016 MT 105, ¶ 18, 383 Mont. 340, 372 P.3d 447. This Court "may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Section 2-4-704(2), MCA.

¶29 McGree and Republic do not challenge the evidence that the Commission cited to support its findings regarding unmet need for services and need for better customer service. Rather, they assert that L&L did not present enough evidence and that the Commission failed to consider evidence of existing competition. Montana law grants the Commission authority to decide whether a new carrier may enter the garbage-hauling market in a particular area. Section 69-12-314, MCA. As the fact-finding body, the Commission is entitled to evaluate the strength of the evidence on the statutory factors. Evidence is substantial, "despite the fact that there was evidence that may have supported a different result." Peretti , ¶ 18. McGree and Republic's complaints in essence ask this Court to reweigh the evidence before the Commission-something we will not do. See § 2-4-704(2), MCA. The Commission relied on testimony from the hearing to find that there was unmet need for services and need for better customer service that would not be met without additional competition.

¶30 Granted, the evidence was not as strong as that presented before the Commission in Waste Management Services . But that is not the standard. Rather, we review the record to determine whether the Commission's findings are based on substantial evidence, even if the evidence also could have supported a contrary conclusion. Peretti , ¶ 18. L&L presented witnesses who testified that there was a need for better customer service. The Commission relied on testimony from one of Republic's own drivers that customer service issues were systemic and from a customer that service improved after he expressed support for L&L's application. Although the Commission could have weighed the evidence differently and reached a different conclusion, its finding that public convenience and necessity required the granting of a Class D certificate to L&L was not in clear error. We conclude that the Commission relied on substantial evidence to support its determination.

¶31 3. Whether the Commission should have engaged in rulemaking under the Montana Administrative Procedure Act (MAPA) before adopting a new standard.

¶32 McGree's and Republic's final argument is that the Commission's decision should be reversed because the Commission departed from its own long-established standards for when it would consider competition in determining public convenience and necessity without giving advance notice and going through the rulemaking process in MAPA. Relying on Southern Montana Telephone Co. v. Montana Public Service Commission , 2017 MT 123, ¶ 18, 387 Mont. 415, 395 P.3d 473, McGree and Republic argue that to change "a standard or statement of general applicability," an agency must follow the process for rulemaking under MAPA, which the Commission failed to do.

¶33 The Commission acknowledged in its final order that it previously had not considered competition until after determining that there was public need. It explained, however, that the plain language of the statute did not require this approach and that "[i]n this case, competition and need are related concepts," citing the need for better customer service and lack of willingness to provide better customer service "absent the prospect or reality of competition."

¶34 Resolution of this issue depends on the difference between an agency's rulemaking and adjudication powers. Section 2-4-102(4), MCA, defines a "contested case" as "a proceeding before an agency in which a determination of legal rights, duties, or privileges of a party is required by law to be made after an opportunity for hearing." The power to adjudicate a contested hearing is a "quasi-judicial power [that] is intended to provide for the enforcement of agency statutes and regulations on a case-by-case basis." Core-Mark Int'l, Inc. v. Mont. Bd. of Livestock , 2014 MT 197, ¶ 26, 376 Mont. 25, 329 P.3d 1278 (quoting 3 Jacob A. Stein et al., Administrative Law § 14.01 (2014)). Section 2-4-102(11)(a), MCA, defines a "rule" as "each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy." Rulemaking is a "quasi-legislative power." Core-Mark Int'l, Inc. , ¶ 26 (quoting 3 Jacob A. Stein et al., Administrative Law § 14.01 (2014)). It "is intended to add substance to the [acts of the legislature], to complete absent but necessary details, and to resolve unexpected problems." Core-Mark Int'l, Inc. , ¶ 26 (alteration in original) (quoting 3 Jacob A. Stein et al., Administrative Law § 14.01 (2014)).

¶35 The proceeding before the Commission was the adjudication of a contested hearing to determine "legal rights, duties, or privileges of" L&L to haul garbage in Gallatin and Madison Counties. Section 2-4-102(4), MCA. This was a specific application of the statutes regulating the granting of Class D certificates to a specific applicant. Section 69-12-323(2)(b), MCA, granted the Commission discretion to consider competition when determining public convenience and necessity. The Commission is not required to go through rulemaking under MAPA to exercise this statutorily granted discretion.

¶36 Our decision in Southern Montana Telephone Co. , does not change this analysis. In Southern Montana Telephone Co. , the Commission adopted "a rubric" of "three formulaic criteria" that it intended to use to adjudicate motions for protective orders going forward. S. Mont. Tel. Co. , ¶ 17. As we explained, this new rubric did "not call for balancing individual interests on a case-by-case basis," but set formulaic criteria that required no further analysis: if the company's circumstances fit the formula, there would be no inquiry into the facts of the specific dispute. S. Mont. Tel. Co. , ¶ 17.

¶37 Unlike the rubric in Southern Montana Telephone Co. , which sought to eliminate discretion from the Commission's decision-making, the Commission in this case exercised the discretion granted to it by statute to consider competition on a case-by-case basis. Exercising its discretion under the facts presented to it was not rulemaking under MAPA, because the Commission was not announcing and applying a formula that would displace its consideration of case-specific factors to resolve a particular dispute. The Commission instead acknowledged that it was departing from its own precedent in analyzing the facts of the case before it. If an agency declines to follow its precedent, it must "provide a reasoned analysis explaining its departure" from any prior precedent. Waste Mgmt. Partners , 284 Mont. at 257, 944 P.2d at 217 ; see also FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 515, 129 S.Ct. 1800, 1811, 173 L.Ed.2d 738 (2009) ("[T]he agency must show that there are good reasons for the new policy. But it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates."). Application of a different analytical approach in its adjudication of a particular case is not tantamount to rulemaking.

¶38 The Commission is not bound by the approach it used to consider competition in L&L's failed 2011 application. The Commission properly explained how it was considering competition under the facts of this particular application for a Class D certificate and properly exercised the discretion granted to it by the statute.

CONCLUSION

¶39 The District Court is affirmed.

We Concur:

MIKE McGRATH, C.J.

INGRID GUSTAFSON, J.

LAURIE McKINNON, J.

JAMES JEREMIAH SHEA, J.


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    Dismissed.


text:
    Jondrew Megil LACHAUX, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Douglas W. Herndon, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
    No. 78252
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    DENIED.


text:
    Derrick Everett BISHOP, Appellant, v. The STATE of Nevada, Respondent.
    No. 76571
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    AFFIRMED.


text:
    Marcus WASHINGTON, Appellant, v. The STATE of Nevada, Respondent.
    No. 76045
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    AFFIRMED.


text:
    Jameilen Dellumaries GILES, Appellant, v. The STATE of Nevada, Respondent.
    No. 75772
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    AFFIRMED.


text:
    Joshua Lewis SMITH, Appellant, v. The STATE of Nevada, Respondent.
    Joshua Lewis Smith, Appellant, v. The State of Nevada, Respondent.
    Joshua Lewis Smith, Appellant, v. The State of Nevada, Respondent.
    No. 76784 No. 76785 No. 76786
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    AFFIRMED.


text:
    Damien Demetrius REESE, Appellant, v. The STATE of Nevada, Respondent.
    No. 76599
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    AFFIRMED.


text:
    Terrie SENA, Appellant, v. The STATE of Nevada, Respondent.
    No. 74650
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    AFFIRMED.


text:
    The BANK OF NEW YORK MELLON, f/k/a the Bank of New York as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2005-27, Mortgage Pass-Through Certificates Series 2005-27, Appellant, v. SATICOY BAY LLC SERIES 1637 BENT ARROW; and El Dorado Neighborhood First Homeowners Association, Respondents.
    No. 74953
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    REVERSED. REMAND.


text:
    Gonzalo I. GALINDO-MILAN, f/k/a Gonzalo I. Galindo, Appellant, v. Julie L. HAMMER; and Mary Johanna Rasmussen, Respondents.
    No. 74068
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    Affirm.


text:
    Michael Leon WILLIAMS, Appellant, v. The STATE of Nevada, Respondent.
    Michael Leon Williams, Appellant, v. The State of Nevada, Respondent.
    No. 76285 No. 76286
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    AFFIRMED.


text:
    In the MATTER OF DISCIPLINE OF Hera ARMENIAN, Bar No. 12322.
    No. 78343
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    DECLINING TO SUSPEND OR REFER.


text:
    Harold Samuel CORDOVA, Appellant, v. The STATE of Nevada, Respondent.
    No. 75068
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    AFFIRMED.


text:
    Calvin Thomas ELAM, Appellant, v. The STATE of Nevada, Respondent.
    No. 74581
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    AFFIRMED.


text:
    John Anthony DALY, Appellant, v. The STATE of Nevada, Respondent.
    No. 75670
    Supreme Court of Nevada.
    FILED APRIL 12, 2019
    AFFIRMED.


author: NAKAMURA, Chief Justice.

text:
    UNITE NEW MEXICO, Heather Nordquist, Elect Liberty Pac, Libertarian Party of New Mexico, and Republican Party of New Mexico, Petitioners, v. Maggie Toulouse OLIVER, Secretary of State of New Mexico, Respondent.
    S-1-SC-37227
    Supreme Court of New Mexico.
    Filing Date: February 7, 2019
   NAKAMURA, Chief Justice.

{1} The Secretary of State (Secretary) sought to reinstate straight-ticket voting in the November 2018 general election. A coalition of voters, political parties, and political organizations (Petitioners) filed a petition for writ of mandamus asking this Court to order the Secretary to stop and make no further efforts to reinstate the straight-ticket option on grounds that she does not possess authority to do so. We agree with Petitioners. Whether straight-ticket voting shall once more be a ballot option in general elections in New Mexico is a policy question for our Legislature. The Legislature cannot delegate election policy determinations. The Secretary's efforts to reinstate straight-ticket voting without legislative approval violates separation of powers principles and is unlawful. The petition for writ of mandamus is granted.

I. DISCUSSION

{2} "The New Mexico Constitution gives this Court the power to issue writs of mandamus 'against all state officers.' " State ex rel. League of Women Voters v. Herrera , 2009-NMSC-003, ¶ 12, 145 N.M. 563, 203 P.3d 94 (citing N.M. Const. art. VI, § 3 ). The Secretary is a "state officer." Id. We have exercised our "original jurisdiction in mandamus in instances where a petitioner sought to restrain one branch of government from unduly encroaching or interfering with the authority of another branch in violation of Article III, Section 1 of our state constitution." State ex rel. Sandel v. N.M. Pub. Util. Comm'n , 1999-NMSC-019, ¶ 11, 127 N.M. 272, 980 P.2d 55. This case presents this exact circumstance. Petitioners ask us to restrain the Secretary, an executive branch official, from encroaching upon the authority of the legislative branch to make the election laws.

{3} Petitioners contend that the Secretary cannot reinstate straight-ticket voting in the general election because only the Legislature may decide this question and that the Legislature has already decided that straight-ticket voting shall not be available to voters in the general election. The Secretary responds that "the New Mexico Legislature has never prohibited the inclusion of a straight-party voting option on the ballot," and that the Legislature "left this option, like other options involved in formatting the ballot, to be determined by the [Secretary]." She emphasizes that "the Election Code quite clearly gives the [Secretary] discretion on the formulation of the ballot" and directs us to NMSA 1978, Section 1-10-12(F) (2009) which provides that "[p]aper ballots shall: ... be in the form prescribed by the [Secretary]."

{4} The Secretary's arguments require us to examine (A) whether the Legislature may delegate to the Secretary the authority to decide whether to include the straight-ticket option on ballots in the general election, (B) the rich and complex history of straight-ticket voting in New Mexico, and (C) the text and history of Section 1-10-12(F).

A. Separation of Powers and Nondelegation

{5} The Secretary's position in this case is not that the Legislature decided that the straight-ticket option should be included on the ballot in the upcoming general election and delegated to her the task of implementing this policy choice. Rather, she contends that the Legislature intended "to allow the [Secretary], in the exercise of her discretion, to decide whether to include a straight-party voting option on the uniform ballot." It is her position that the Legislature delegated to her the threshold determination of whether to embrace straight-ticket voting at all. This claim is highly problematic.

{6} The New Mexico Constitution grants to each of the three branches of state government distinct and exclusive powers. N.M. Const. art. III, § 1. ("The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted."). The Constitution further provides that "[t]he [L]egislature ... shall regulate the manner, time and places of voting" and "shall enact such laws as will secure the secrecy of the ballot and the purity of elections and guard against the abuse of elective franchise." N.M. Const. art. VII, § 1 (B). This language vests our Legislature with plenary authority over elections, an authority limited only by the Constitution itself. See Chase v. Lujan , 1944-NMSC-027, ¶ 24, 48 N.M. 261, 149 P.2d 1003 ("[E]xcept as prohibited, the [L]egislature has plenary power to regulate the manner of voting...."); see also People's Constitutional Party v. Evans , 1971-NMSC-116, ¶ 10, 83 N.M. 303, 491 P.2d 520 ("Elections of necessity must be organized and controlled to protect the right of suffrage, secrecy of the ballot, and against confusion, deception, dishonesty and other possible abuses of the elective franchise. The Legislature is charged with the duty of enacting laws to accomplish the purity of elections and protect against abuses."); City of Raton v. Sproule , 1967-NMSC-141, ¶ 76, 78 N.M. 138, 429 P.2d 336 ("We are of the opinion that our constitution expressly contemplates and directs that the legislature shall provide the proper machinery for conducting elections for different purposes....").

{7} It is well understood that straight-ticket voting has meaningful impact on elections. See Erik J. Engstrom and Jason M. Roberts, The Politics of Ballot Choice , 77 Ohio St. L.J. 839, 839-41, 864-65 (2016) (discussing attempts in several states to impose or abolish straight-ticket voting and observing that "ballot laws have become a new weapon in the quest for political power" and that, "in almost all cases, the actors who advocate for changes to the form of the ballot pursue changes that are likely to strengthen their hold on political power"). Whether to include the straight-ticket option in elections is a policy decision of some magnitude.

{8} "The nondelegation doctrine limits, but does not completely prevent, the Legislature from vesting a large measure of discretionary authority in administrative officers and bodies." Cobb v. State Canvassing Bd. , 2006-NMSC-034, ¶ 41, 140 N.M. 77, 140 P.3d 498. "The Legislature may not vest unbridled or arbitrary authority in an administrative body ... and must provide reasonable standards to guide it." Id. This is because "[l]egislative power cannot be delegated, and the Legislature cannot confer upon any person, officer, or tribunal the right to determine what the law shall be. This is a function which the Legislature alone is authorized under the Constitution to exercise." State v. Spears , 1953-NMSC-033, ¶ 10, 57 N.M. 400, 259 P.2d 356 (quoting State v. Briggs , 45 Or. 366, 77 P. 750, 750 (1904) ). This is not to say, of course, that the Legislature is precluded from delegating the implementation of a legislatively determined "scheme, policy, or purpose[.]" Cobb , 2006-NMSC-034, ¶ 41, 140 N.M. 77, 140 P.3d 498. This form of delegation is common in our modern, regulatory state. See generally 1 Jacob A. Stein, et al., Administrative Law , § 3.03[5], at 128-42 (2013). Rather, what the Legislature cannot do is delegate the right to determine, in the first instance and wholesale, what that scheme, policy, or purpose will be. See Yakus v. United States , 321 U.S. 414, 426, 64 S.Ct. 660, 88 L.Ed. 834 (1944) ("Only if we could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose....").

{9} The Secretary's position in this case is precisely what the nondelegation doctrine forbids-that the Legislature delegated to her the authority to make the binary choice of whether to embrace straight-ticket voting or not. In other words, to decide what the election law shall be. The Legislature cannot delegate this authority, and to conclude otherwise would result in a violation of the separation of powers. Our review of the history of straight-ticket voting in New Mexico assures us that our Legislature has never delegated this authority to the Secretary.

B. History of Straight-Ticket Voting in New Mexico

{10} There are three facets to the history of straight-ticket voting in New Mexico: (1) our Legislature's former authorization of straight-ticket voting in general elections and its practice of carefully articulating how voters may exercise this ballot option, (2) the emergence and repeal of a statute requiring the straight-ticket option be included on emergency paper ballots, and (3) the introduction of voting machines in New Mexico and the passage and subsequent repeal of a statute requiring those machines to have straight-ticket voting capability. We address each of these matters separately. We begin at a period of time before straight-ticket voting appeared in our Election Code.

1. Straight-ticket voting in general elections

{11} In 1852, the Territorial Legislature passed an enactment that authorized the Governor to "prepare proper forms for the uniform and proper conducting of all elections to be conducted and held under the laws of this Territory[.]" 1882 General Laws of N.M., § 64 (Act of January 9, 1852). The act required the "secretary of the Territory" to "have all such forms ... printed and distributed, as occasion may require." Id. This enactment appears in the 1884 Compiled Laws of New Mexico with minimal alteration. Section 1182, C.L. 1884. The 1884 compilation also includes a provision specifying that "[a]ll votes shall be by ballot, each voter being required to deliver his own vote by person" and that "[e]ach ticket shall be numbered and the number placed opposite the name of the voter[.]" Section 1142, C.L. 1884.

{12} In 1891, the Territorial Legislature passed an enactment that provided additional, specific guidance regarding ballots. 1891 N.M. Laws, ch. 85, § 2. The enactment mandated that

all tickets or ballots used at any general election held in this Territory shall be printed on plain white paper, three inches in width and eight inches in length, or within one quarter of an inch of that size. No such ticket or ballot shall have any mark or number or designating device on the back so that its character may be known when folded.

Id. This enactment appeared in the 1897 Compilation of the Territorial Laws. Section 1634, C.L. 1897. As before, the 1897 compilation also included the provision authorizing the Governor to prepare the "proper forms" for elections. Section 1673, C.L. 1897.

{13} By the time of the 1915 compilation (after New Mexico had become a state), the provision authorizing the Governor to "prepare proper forms" was no more. Our Legislature expanded its treatment and control over ballots considerably. Ballots were now addressed in several different articles and sections within a chapter of our laws dedicated entirely to elections. See generally §§ 1976-2080, C.L. 1915. Each section included a heading generally stating that section's purpose.

{14} One section, entitled "Ballots-How furnished-Form[,]" specified that "[e]very ballot printed under the provision of this article shall be headed by the name and emblem of the political party by whom the candidates whose names appear on the ballots were nominated, and each of said ballots shall contain only the names of the candidates nominated by said party." Id. § 1993. Another section entitled "Ballots-Size-Contents-False headings, etc." restated the requirements that ballots "be printed on plain white paper, three inches in width and eight inches in length, or within one quarter of an inch of that size." Id. § 1994. Two other sections entitled "Candidates-Filing list-Names on ballots" and "Emblem" addressed the supremacy of the official ballot and gave instructions as to how the emblems of political parties were to be submitted. Id. §§ 1995, 1996.

{15} In 1927, a comprehensive set of provisions expressly designated as an "Election Code" was passed for the first time. 1927 N.M. Laws, ch. 41, §§ 101-321. The 1927 Election Code significantly increased legislative control over the ballot. Provisions within that code specified that ballots must be printed on "good quality of plain white paper, and all printing thereon shall be in black ink." Id. § 306(1). The code also specified the font types for the ballot: "nonpareil caps" for the varying offices at stake in the election and a font "not smaller than brevier nor larger than small pica caps" for candidate names. Id. § 306(4). Most crucially, the code expressly embraced straight-ticket voting as a ballot option, incorporated a ballot-design scheme predicated upon the availability of the option, and included instructions for voters specifying how the option could be utilized. Id. §§ 306, 311.

{16} Section 306 of The 1927 Election Code specified that "[t]he names of all candidates of any party shall be printed on the ballot in the column under the party name and emblem of such party." Id. § 306(3). It further specified that the ballot must include "a circle three-fourths of an inch in diameter under the emblem of each party and a one-quarter inch square opposite and to the right of the name of each candidate." Id. § 306(4). A pictorial representation of a sample ballot-showing how these symbols should appear-was included at Section 306(9). See app. A, fig. 1. Voting instructions prepared by the Legislature and included in The 1927 Election Code made clear to voters that marking the circle, the square, or both had consequence. See 1927 N.M. Laws, ch. 41, §§ 306, 311, 312; see also app. A, fig. 2.

{17} One set of instructions to be printed on the back of each ballot, instructed voters as follows:

Mark with pen and ink or indelible pencil a cross in the "under the party name and emblem of the party for all or most of whose candidates you wish to vote, and if you wish to vote for any candidate other than a candidate whose name appears in the column under such 'mark a cross in the first' to the right of the name of the candidate in any other column for whom you wish to vote.... If you do not wish to make a cross in any circle you may make a cross in the first" to the right of the name of each candidate or person for whom you wish to vote.

Id. § 306(9); see also id. § 312 (stating how "Electors shall vote" and providing a similar account of how the straight-ticket option could be utilized).

{18} A second set of instructions were to be printed by the Secretary and delivered to county clerks who were in turn directed to hang the instructions in voting booths and "elsewhere in or about the polling place." Id. § 311. These instructions differed only slightly from those that were to appear on the back of ballots and included the following description of how voters could exercise the straight-ticket option: "If you wish to vote a straight party ticket, make a cross in the circle under the party name and emblem of such party, and your vote will be considered as cast for every candidate named under such party name." Id. The second set of instructions went on to specify how a voter could exercise the straight-ticket option and also simultaneously vote for candidates of another party.

4. If you wish to vote a straight party ticket with the exception of one or more of the candidates of said party you may make a cross in the "under the party name and emblem of such party, and then make a cross in the first" to the right of the name of the candidate in any other column for whom you wish to vote[.]

Id. Finally, the second set of instructions explained how a voter could decline to utilize the straight-ticket option: "If you do not make a cross in the 'under any party emblem you may then make a cross in the first' to the right of the name of each candidate for whom you wish to vote[.]" Id.

{19} The 1927 Election Code also referred to straight-ticket voting in provisions addressing how election judges should count votes. Id. §§ 314, 319. These provisions suggested the following method:

22. The election judges and clerks may use any practical method for counting and tallying the ballots. The following method is recommended as best calculated to facilitate said counting and tallying:
Upon opening the ballot box, the judges of election shall first unfold all of the ballots and place them in separate piles as follows:
Straight Republican; Straight Democrat; Scratched ballots with cross in the circle under the Republican emblem; Scratched ballots with cross in the circle under the Democratic emblem; and in a fifth pile place all other scratched ballots. Then count the Straight Republican ballots and enter the number so counted on the first line of the first tally sheet in the poll book in which they are tallying the vote. This number should be written in the column under the name of each of the Republican candidates on the first line. When the Straight Republican ballots have been counted, tie them into a separate package and keep them in a safe place.
In the same way, enter on the first line of the tally sheet the number of Straight Democratic ballots in the column under the name of each of the Democratic candidates. Then tie these ballots into a package with the ballots already counted.

Id. § 319.

{20} The 1927 Election Code was compiled at Chapter 41 in the 1929 Compilation, at Chapter 56 in the 1941 Compilation, and at Chapter 3 in the 1953 Compilation. The 1927 Election Code eventually became simply the "Election Code." NMSA 1941, §§ 56-101 (1942). Each compilation-1929, 1941, and 1953-includes the straight-ticket-voting provisions discussed. NMSA 1953, §§ 3-3-7, -12, -13, -20 (1953); NMSA 1941, §§ 56-306, -312, -313 (1941); NMSA 1929, § 41-306 (1929). No meaningful changes were made to those provisions until 1969.

{21} In 1969, our Legislature repealed Article 3 of the Election Code, the section that included the provisions dealing with straight-ticket voting. 1969 N.M. Laws, ch. 240, § 451. Simultaneously, the Legislature enacted a new Article 12 which included a section addressing the "Marking" of the "Paper Ballot." 1969 N.M. Laws, ch. 240, § 255. One provision within that article specified that

The voter in preparing a paper ballot in a general election shall:
A. if he wishes to vote a straight party ticket, mark a cross (X) in the circle beneath the name of the party and his vote shall be considered as having been cast for every candidate named on the ticket of that party on the ballot, unless he also votes for one or more candidates in some other column or for some person whose name is not printed on the ballot[.]

1969 N.M. Laws, ch. 240, § 255(A). Subsections (B) and (C) explained how a voter could utilize the straight-ticket option and still vote for candidates in the party for which he did not wish to vote straight ticket and how the voter could decline to utilize the straight-ticket option. 1969 N.M. Laws, ch. 240, § 255(B), (C). This provision was codified at NMSA 1953, Section 3-12-19 (1969 Pocket Supp.).

{22} In the wake of the 1969 amendments to the Election Code, Section 3-12-19 was the only provision addressing straight-ticket voting in general elections that remained within the article of the Election Code entitled "Conduct of Elections," the article where provisions authorizing straight-ticket voting in general elections had always been placed. The voting instructions and the provision explaining how election judges should count votes-both of which included express references to straight-ticket voting-were gone.

{23} In 1977, Section 3-12-19 was repealed along with several other provisions within Chapter 3, Article 12 of the Election Code. 1977 N.M. Laws, ch. 222, § 103. Following the repeal of Section 3-12-19, the Election Code no longer included a provision expressly authorizing straight-ticket voting in general elections.

{24} Despite the absence of a provision expressly authorizing straight-ticket voting in general elections, legislators made six attempts to prohibit straight-ticket voting as a ballot option in general elections between 2001 and 2007. S.B. 52, 48th Leg., 1st Sess. (N.M. 2007); S.B. 106, 47th Leg., 1st Sess. (N.M. 2005); S.B. 837, 46th Leg., 1st Sess. (N.M. 2003); S.B. 147, 46th Leg., 1st Sess. (N.M. 2003); S.B. 293, 45th Leg., 1st Sess. (N.M. 2001); S.B. 183, 45th Leg., 1st Sess. (N.M. 2001). None of these bills passed.

{25} In 2008, the Secretary of State's office created regulations governing how ballots with inconsistent markings shall be counted in the event of an election recount. 1.10.23.12 NMAC (11/03/2008). These regulations operate from the presumption that straight-ticket voting is a lawfully permitted feature in general elections. The regulations state, among other things, that a straight-ticket vote for both parties shall be treated as an invalid vote, 1.10.23.12(I) NMAC, and a straight-ticket vote for both parties and then also for an individual candidate shall be treated as a vote for the individual candidate. Id. These regulations remain in the New Mexico Administrative Code today.

{26} Between 2011 and 2013, legislators three times attempted to mandate that the straight-ticket option be available to voters in general elections. See S.B. 276, 51st Leg., 1st Sess. (N.M. 2013); S.B. 218, 50th Leg., 2nd Sess. (N.M. 2012); S.B. 582, 50th Leg., 1st Sess. (N.M. 2011). None of these bills passed.

2. Straight-ticket voting and emergency paper ballots

{27} The same year our Legislature repealed the provision expressly authorizing straight-ticket voting in general elections (1977), it enacted a provision that explained to voters utilizing "emergency paper ballot[s]" how they could exercise the straight-ticket option. 1977 N.M. Laws, ch. 222, § 56. Emergency-paper-ballot voters were instructed to "mark a cross (X) in the circle beneath the name of the party...." Id. Doing so ensured that their "vote shall be considered as having been cast for every candidate named on the ticket of that party on the ballot[.]" Id. These instructions mirrored those given to all voters during the time that straight-ticket voting was authorized in general elections.

{28} This enactment concerning straight-ticket voting and emergency ballots was compiled at NMSA 1953, Section 3-12-87 (1976-77 Interim Supp.). In 1978, Section 3-12-87 was recompiled as Section 1-12-53. See Parallel Table. In 1979, the Legislature amended Section 1-12-53 to permit voters utilizing emergency paper ballots to "mark" their ballot with a "check (? )" as an alternative to the "cross (X)" beneath the party name for which the voter wished to cast a straight-ticket vote. 1979 N.M. Laws, ch. 57, § 3. In 2005, several bills were proposed to eliminate the straight-ticket option on the emergency ballot. See S.B. 106, 47th Leg., 1st Sess. (N.M. 2005); S.B. 678, 680, 718 & 735, 47th Leg., 1st Sess. (N.M. 2005); H.B. 362, 47th Leg., 1st Sess. (N.M. 2005); H.B. 1063, 47th Leg., 1st Sess. (N.M. 2005); H.B. 1064, 47th Leg., 1st Sess. (N.M. 2005). These efforts were successful and the straight-ticket option was removed from Section 1-12-53. 2005 N.M. Laws, ch. 270, § 74. After 2005, Section 1-12-53 provided only that "[t]he voter in preparing an emergency paper ballot in a general election shall mark the ballot in accordance with the instructions for that ballot type." NMSA 1978, § 1-12-53 (2005). In 2009, Section 1-12-53 was repealed altogether. 2009 N.M. Laws, ch. 150, § 37.

3. Straight-ticket voting and voting machines

{29} In 1951, the Legislature passed a multi-section enactment permitting the use of voting machines. 1951 N.M. Laws, ch. 192, §§ 1-24. The first section of this enactment directed the Secretary to form a committee with four individuals appointed by the Governor to "study, examine and approve voting machines for use in the State of New Mexico." 1951 N.M. Laws, ch. 192, § 1. The act also included a section addressing the required specifications for voting machines. Id. § 2. It specified that "[n]o voting machine shall be approved by the committee unless it shall satisfy" a list of specific criteria designated as Subsections (a) through (h). Id. Subsection (h) specified that the machine had to "permit each voter, at other than primary elections, to vote a straight party ticket in one operation, and, in one operation, to vote for all the candidates of one party for presidential electors." Id. § 2(h). The machine voting enactment was subsequently codified at NMSA 1953, Sections 3-4-1 to -25 (1951) and the provision requiring voting machines to have straight-ticket capability appeared at Section 3-4-2(h) (1951).

{30} In 1969, Sections 3-4-1 to -25 were repealed. 1969 N.M. Laws, ch. 240, § 451. Our Legislature simultaneously enacted a new version of the voting machine act at Sections 3-9-1 to -13. 1969 N.M. Laws, ch. 240, §§ 187-195; see NMSA 1953, §§ 3-9-1 to -13 (1969). Section 3-4-2(h) (requiring voting machines to have straight-ticket capability) now appeared at Section 3-9-5(H). 1969 N.M. Laws, ch. 240, § 187; see also NMSA 1953, § 3-9-5(H) (1969).

{31} In 1976, the authority to approve voting machines was given to the "[S]ecretary of [S]tate." 1976 N.M. Laws, ch. 5, § 4; NMSA 1953, § 3-9-5 (1976). In 1978, Section 3-9-5 was recompiled as Section 1-9-4. NMSA 1978, § 1-9-4 (1978). In 1991, the Legislature specified that the "machine" contemplated by the voting machine act was a "lever-type voting machine." 1991 N.M. Laws, ch. 106, § 1. In the wake of all these changes, Section 1-9-4(H) provided that "[n]o lever-type voting machine shall be approved by the secretary of state unless: ... H. it permits each voter, at other than primary elections, to vote a straight party ticket in one operation[.]" NMSA 1978, § 1-9-4 (1991). In 2001, Section 1-9-4 was repealed along with several other provisions dealing with voting machines, 2001 N.M. Laws, ch. 233, § 16, thus removing any reference to straight-ticket voting from the voting machine act.

{32} In the same 2001 bill repealing Section 1-9-4, the Legislature passed enactments ushering in the era of "voting systems." See generally 2001 N.M. Laws, ch. 233, §§ 1-15. Voting systems are "a combination of mechanical, electromechanical or electronic equipment, including the software and firmware required to program and control the equipment, that is used to cast and count votes[.]" 2001 N.M. Laws, ch. 233, § 1(B). The Legislature crafted a set of "standards" voting systems must meet. Id. §§ 10-11. Straight-ticket capability was not one of those standards. In 2006, the Legislature passed enactments requiring all precincts in New Mexico to utilize "voting systems," and requiring those voting systems to "use a paper ballot on which the voter physically or electronically marks the voters' choices on the ballot itself[.]" 2006 N.M. Laws, ch. 43, §§ 1-2. And with this, our election laws came full circle in some sense.

4. Analysis of This History

{33} For the fifty years between 1927 and 1977, our Legislature not only expressly approved straight-ticket voting in general elections but, for the bulk of this time, gave exceedingly specific instructions about how voters could vote straight ticket. The 1977 repeal of the law expressly authorizing straight-ticket voting in general elections, as well as the disappearance of the voting instructions and the instructions to the election judges expressly referring to straight-ticket voting, cannot be overstated.

{34} The provisions that continued after 1977 and that referred to straight-ticket voting did not clearly state that straight-ticket voting was authorized in general elections, as had been the case for the past half century. Rather, these provisions only made straight-ticket voting available for emergency-ballot voters and mandated that voting machines have straight-ticket voting capability. These provisions do not have the same clarity or functional significance of the former statutes that so clearly mandated that straight-ticket voting be an option in general elections. The straight-ticket provisions in the machine voting and emergency ballot context were repealed in 2001 (voting machines) and 2005 (emergency ballots), after which legislators attempted both to prohibit and reinstate straight-ticket voting in general elections. Supra , ¶¶ 24, 26. It is entirely unclear what authority served as the basis for the Secretary's 2008 regulations which appear to assume that straight-ticket voting continued to be a ballot option in general elections despite the fact that, as of 2005, straight-ticket voting was no longer a feature of any kind in our election laws.

{35} In sum, we see nothing in this history that suggests that our Legislature ever intended to give authority to the Secretary to decide whether straight-ticket voting shall be an option to voters in general elections. To the contrary, this history indicates that our Legislature understands that it alone possesses authority to decide whether and under what circumstances straight-ticket voting should be available in general elections. Nothing in the text or history of Section 1-10-12(F) causes us to doubt this conclusion.

C. Section 1-10-12(F)

{36} Section 1-10-12, entitled "Paper ballots; general requirements[,]" states that

Paper ballots shall:
A. Be numbered consecutively;
B. Be uniform in size;
C. Be printed on good quality white paper;
D. Be printed in plain black type;
E. Have the precinct numbers printed on each paper ballot; and
F. Be in the form prescribed by the secretary of state.

The origin of this provision can be traced back to 1891 when the Territorial Legislature first specified that ballots be printed on "plain white paper" and be a certain uniform size. 1891 N.M. Laws, ch. 85, § 2. The source of the specific language utilized by our Legislature in Section 1-10-12 can be traced to two separate statutes: NMSA 1953, Section 3-10-7 (1969) and NMSA 1953, Section 3-10-10 (1969). See 1969 N.M. Laws, ch. 240, §§ 202, 205.

{37} Section 3-10-7 was entitled "Ballots-Paper-General requirements" and provided as follows:

Paper ballots used in the primary and general elections shall:
A. Be numbered consecutively for each precinct beginning with number one. The number shall be printed in the upper right-hand corner of the ballot with a diagonal perforated line so placed that the portion of the ballot bearing the number in the upper right-hand corner may be readily and easily detached from the paper ballot;
B. Be uniform in size;
C. Be printed on good quality white paper;
D. Be printed in plain black type;
E. Have all words and phrases, except the names of the candidates, printed in their proper place; and
F. Have the precinct number printed on each ballot.

Section 3-10-7 (1969) and Section 1-10-12 (2009) differ only slightly: Section 3-10-7(A) was more specific than Section 1-10-12(A) ; Section 3-10-7(E) was not carried over into Section 1-10-12 ; Section 3-10-7(F) exists at Section 1-10-12(E) ; and Section 3-10-7 did not include the language "be in the form prescribed by the secretary of state" as in Section 1-10-12(F). This "form prescribed" language came from Section 3-10-10.

{38} Section 3-10-10 was entitled "Ballots-Paper-Form for general election." It stated that "[p]aper ballots used in the general election shall be in the form prescribed by the [S]ecretary of [S]tate and shall conform to" four requirements none of which need be discussed in any detail here. Section 3-10-10 (1969).

{39} Both Sections 3-10-7 and 3-10-10 were repealed in 1977 along with many other sections of Chapter 3, Article 10 governing "Ballots and Ballot Labels." 1977 N.M. Laws, ch. 222, § 103. Simultaneously, the Legislature enacted a new Section 3-12-78 entitled "Emergency Situations-Emergency Paper Ballots-General Requirements[,]" 1977 N.M. Laws, ch. 222, § 47; see NMSA 1953, § 3-12-78 (1977), and a new Section 3-12-80 entitled "Emergency Situations-Emergency Paper Ballots-Form for General Election." 1977 N.M. Laws, ch. 222, § 49; see NMSA 1953, § 3-12-80 (1977). Section 3-12-78 (1977) was nearly identical to Section 3-10-7 (1969) except that Section 3-12-78 applied to "emergency paper ballots." Section 3-12-80 (1977) was nearly identical to Section 3-10-10 (1969) except that it too applied to "emergency paper ballots."

{40} In 1978, Section 3-12-78 was recompiled as Section 1-12-44 and Section 3-12-80 was recompiled as Section 1-12-46. In 2009, Section 1-12-44 was amended and recompiled as the present Section 1-10-12. 2009 N.M. Laws, ch. 150, § 10. Simultaneously and in the same bill, Section 1-12-46 was repealed. 2009 N.M. Laws, ch. 150, § 37.

{41} As a consequence of the 2009 amendments, Section 1-10-12 no longer governed or addressed emergency ballots. It concerned paper ballots and included the language as we know it today. In effect, the provision reverted to the purpose it originally had in 1969 with an essential added feature: it specified that paper ballots shall "be in the form prescribed by the secretary of state." NMSA 1978, § 1-10-12 (2009).

{42} This history does not suggest, as the Secretary argues, that our Legislature meant to empower her to decide whether straight-ticket voting shall be available to voters in general elections when it gave her the authority to prescribe the form of the ballot. Since 1927, our Election Code has addressed whether and under what circumstances straight-ticket voting shall be available to voters in general elections in an article of our Election Code initially entitled the "Calling and Conduct of Elections" and later simply the "Conduct of Elections." 1927 N.M. Laws, ch. 41, §§ 302-21 (Calling and Conduct of Elections); NMSA 1929, §§ 41-301 to -360 (1929) (same); NMSA 1941, §§ 56-301 to -362 (1941) (same); NMSA 1953, §§ 3-31 to -40 (1953) (same); NMSA 1953, §§ 3-12-1 to -16 (1969) (Conduct of Elections). The statutes that would eventually become Section 1-10-12 were originally codified at Article 10, an article addressing "Ballots and Ballot Labels." NMSA 1953, § 3-10-1 to -15 (1969). As the statutes that would later become Section 1-10-12 came into existence at a time when a section in an entirely different article provided for straight-ticket voting in general elections, we can deduce that the origins of Section 1-10-12 had nothing whatsoever to do with straight-ticket voting. See Norman J. Singer and J.D. Shambie Singer, 1A Sutherland Statutes and Statutory Construction , § 28.11, at 637 (7th ed. 2009) ("[I]n the construction of a particular code section, attention should be given to the entire chapter, or even the entire code, to determine the purpose and objective of the [L]egislature in organizing the material. Under some circumstances the placement or rearrangement of code sections may be helpful to determine proper construction of the statute." (footnotes omitted)).

{43} It is true that from 1977 until 2009 the emergency ballot iterations of Section 1-10-12 were codified within the Conduct of Elections article. But after 2009, Section 1-10-12 once again moved back to Article 10 of the Election Code. The significance of this move-out of and away from the article where the statutes authorizing straight-ticket voting in general elections were generally housed-suggests that Section 1-10-12 is not a provision that was ever intended to authorize the Secretary to decide questions relating to straight-ticket voting. We are assured of the correctness of this conclusion by a plain language analysis of Section 1-10-12.

{44} Section 1-10-12(F)'s directive that the ballot "be in the form prescribed by the secretary" is preceded by Subsections (A) through (E). The nature of Subsections (A) through (E) give us insight into the meaning of Subsection (F). See NMSA 1978, § 12-2A-20(A)(2) (1997) ("[T]he meaning of a general word or phrase following two or more specific words or phrases may be limited to the category established by the specific words or phrases."); State v. Office of Pub. Def. ex rel. Muqqddin , 2012-NMSC-029, ¶ 29, 285 P.3d 622 ("The rule of ejusdem generis requires, that where general words follow an enumeration of persons or things of a particular and specific meaning, the general words are not construed in their widest extent but are instead construed as applying to persons or things of the same kind or class as those specifically mentioned." (internal quotation marks and citation omitted)).

{45} Subsections (A) through (E) state that ballots shall be numbered, shall be uniform in size, shall be printed on quality white paper, shall be printed in plain black type, and shall have precinct numbers printed upon them. Section 1-10-12(A)-(E). These provisions all address the technical formatting of ballots. This indicates that the term "form" in Section 1-10-12(F) is correctly construed as delegating to the Secretary authority only over the technical aspects of ballots. This is a limited power as many of the technical, formatting aspects of the ballot are specified by statute. See generally NMSA 1978, §§ 1-10-1 to -14 (1969, as amended through 2017). As we noted earlier in this opinion, whether straight-ticket voting shall be an option on ballots in general elections is not a technical formatting question. It is a question of significant substance over which Section 1-10-12 gives the Secretary no authority.

II. CONCLUSION

{46} Our Legislature cannot delegate to the Secretary unfettered authority to decide whether the straight-ticket option shall appear on ballots in the general election. The history of straight-ticket voting in general elections in New Mexico shows that the Legislature never delegated or attempted to delegate this authority to the Secretary. This conclusion is hardly surprising given the fact that whether straight-ticket voting shall be a ballot option in a general election is a meaningful policy question and not a mere technical, ballot-formatting matter. Our review of the history of straight-ticket voting also reveals that our Legislature removed any reference to straight-ticket voting in our Election Code. This can only be interpreted as a decision to remove the option from the ballot.

{47} The petition is granted and the writ of mandamus issued.

{48} IT IS SO ORDERED.

WE CONCUR:

BARBARA J. VIGIL, Justice

PETRA JIMENEZ MAES, Justice, Retired Sitting by designation

CHARLES W. DANIELS, Justice, Retired Sitting by designation

BRETT R. LOVELESS, Judge Sitting by designation

Appendix A --------

      We announced this unanimous decision after deliberation following oral argument. This opinion memorializes and more thoroughly explicates the basis for our ruling.

      We do not address Petitioners' claim that the Secretary was required to initiate rulemaking proceedings to reinstate straight-ticket voting. This claim is moot given our conclusion that only the Legislature may reinstate straight-ticket voting. We also do not address Petitioners' contention that the Secretary's attempts to reinstate straight-ticket voting infringes upon their constitutional rights. Petitioners have abandoned this contention.


author: COMBS, J.:

text:
    Ronald W. MCGEE as Trustee of the Watts Ranch, LLC; Nora Ann Watts Enis; Judy R. Durant; Johnye L. Barnes; the Estate of Clara Joann Smith; and the C & J Wilcox Family Trust, Plaintiffs/Appellees, v. AMOCO PRODUCTION COMPANY, Defendant/Appellant, and Terry J. Barker, Robert Lawrence and Joseph C. Woltz, Additional Non-Party Appellees.
    No. 117,511
    Supreme Court of Oklahoma.
    FILED FEBRUARY 26, 2019
    MEMORANDUM OPINION
   COMBS, J.:

¶1 On November 6, 2018, the Defendant, Amoco Production Company (Amoco), filed a Petition in Error seeking review of a trial court Order denying Amoco's motion to disqualify Plaintiffs' counsel. On November 19, 2018, this Court placed this case on the fast track docket pursuant to Okla. Sup. Ct. R. 1.17 (III).

¶2 In the Brief in Chief, Amoco asserts the trial court's Order provides only summary holdings and provides no specific findings and conclusions for denying disqualification as required by Miami Bus. Servs., LLC v. Davis, 2013 OK 20, 299 P.3d 477. In Miami, the plaintiff moved to disqualify defendant's attorney based on past representation of the plaintiff. The trial court denied the motion. The trial court held a hearing but its order did not contain any findings of fact or conclusions of law; it at least listed the briefs and documents it reviewed to make its decision. Miami Bus. Servs., LLC, 2013 OK 20, ¶ 4, 299 P.3d 477. We determined it was essential that the facts relied upon by the trial court appear in a record in order to have meaningful appellate review and a trial court must follow the procedures set forth in Piette v. Bradley & Leseberg , 1996 OK 124, 930 P.2d 183 and Arkansas Valley State Bank v. Phillips , 2007 OK 78, 171 P.3d 899. Miami Bus. Servs., LLC, 2013 OK 20, ¶ 24, 299 P.3d 477. We held:

Before ruling whether an attorney should be disqualified based on conflict of interestor improper possession of confidential information , it must hold an evidentiary hearing. The trial court must then make a specific factual finding in its order of disqualification or its order denying disqualification that the attorney either had, or did not have, knowledge of material and confidential information . If the ruling is appealed, we will then, when reviewing the order, review the trial court's findings of fact for clear error and carefully examine de novo the trial court's application of ethical standards.

Id. (emphasis added). We then concluded:

The trial court is still required to submit written findings or create a record setting forth its factual and legal support for its ruling when making its decision to deny a motion to disqualify counsel in the same manner it would if it were granting such a motion. Otherwise, a petitioner appealing the denial of a motion to disqualify counsel is denied any substantive basis for their appeal and no meaningful way to challenge the factual and legal findings that serve as the basis for the trial court's ruling .

Id. , ¶ 25 (emphasis added). The order denying disqualification of counsel was vacated and the matter was remanded for proceedings consistent with the opinion. Id.

¶3 Like Miami, a hearing was held in the present case. The Order denying disqualification of counsel made no findings setting forth its factual and legal support for its ruling. The Order merely provides that the defendant "lacks standing to move for disqualification," "has failed to present any valid grounds for disqualification," and "has identified no conflict between the interests of the [various] Plaintiffs." The transcript of the October 31, 2018, hearing, concerning the motion to disqualify counsel, does not contain the trial court's findings or indicate what legal support it will rely upon to make its later ruling. Miami and Arkansas Valley State Bank both concerned the issue of an attorney having confidential information and therefore the specific findings required in those opinions related to whether an attorney either had, or did not have, knowledge of material and confidential information. The present case concerns allegations the Appellees' attorneys have a conflict of interest between the various clients it represents in several actions. The nature of the alleged conflict of interest is based upon economic interests and not confidential information. However, this fact makes it no less important for the trial court "to submit written findings or create a record setting forth its factual and legal support for its ruling when making its decision to deny a motion to disqualify counsel." Id. , ¶ 25. The purpose as set out in Miami is to avoid a situation where the "petitioner appealing the denial of a motion to disqualify counsel is denied any substantive basis for their appeal and no meaningful way to challenge the factual and legal findings that serve as the basis for the trial court's ruling." Id.

¶4 This Memorandum Opinion is not a ruling on the merits of the Order denying disqualification of counsel, but is intended to maintain compliance with existing precedent. The trial court's Order denying disqualification of counsel is vacated, and this cause is remanded for further proceedings sufficient to prepare a final order which makes findings setting forth the factual and legal support for the trial court's ruling. Specifically, in determining whether there exists grounds for disqualification of counsel, the trial court shall prepare an order which identifies what specific facts, if any, support the courts finding of the existence or non-existence of a conflict of interest and the legal support for such a determination. Additionally, the trial court should identify the facts and legal support for a finding that the Defendant has or does not have standing to challenge any perceived conflict of interest.

¶5 Gurich, C.J., Kauger, Winchester, Edmondson, Colbert, Reif, Combs, Darby, JJ., concur.

¶6 Wyrick, V.C.J., dissents.

      In Piette , this Court issued an order wherein we held:
      The trial judge's disqualification order is summarily reversed and the cause remanded for an evidentiary hearing. If, after holding a hearing, the trial judge should determine that plaintiff's attorneys should be disqualified, its order of disqualification must include a specific factual finding that attorney Wagner had knowledge of material and confidential information.
      Piette , 1996 OK 124, ¶ 2, 930 P.2d 183.
      The plaintiff appealed the order disqualifying his attorney. The order was based on a conflict of interest. No other facts concerning this case are mentioned in the order.

      In Arkansas Valley State Bank, a Bank moved to disqualify defendant's counsel based upon its belief he obtained privileged information by a former bank employee. The defendant's counsel, however, had never represented the Bank. The trial court granted the motion. The order was vague, but this Court interpreted it to say the court relied on "the appearance of impropriety" standard, and we held that was not the proper standard. Arkansas Valley State Bank, 2007 OK 78, ¶ 22, 171 P.3d 899. Another reason for reversing the order was that the order did not contain specific findings of fact as required by Piette . Id. , ¶¶ 8, 25. We held:
      Before the trial court can determine that an attorney should be disqualified based on conflict of interest or improper possession of confidential information , it must hold an evidentiary hearing and make a specific factual finding in its order of disqualification that the attorney had knowledge of material and confidential information.
      Id. , ¶ 8 (emphasis added). The matter was reversed and remanded to the trial court for new proceedings.


text:
    STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant, v. Matthew Jeremy PATTON, Respondent.
    SCBD 6734
    Supreme Court of Oklahoma.
    Decided: March 4, 2019
    ORDER APPROVING RESIGNATION FROM OKLAHOMA BAR ASSOCIATION PENDING DISCIPLINARY PROCEEDINGS
    ¶ 1 Upon consideration of (1) Respondent's Affidavit, prepared in compliance with Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A, in which Respondent, Matthew Jeremy Patton requests that he be allowed to relinquish his license to practice law and to resign from membership in the Oklahoma Bar Association, and (2) Complainant's Application for Order Approving Resignation,
    ¶ 2 THE COURT FINDS AND HOLDS:
    ¶ 3 During the pendency of disciplinary proceedings against him, Matthew Jeremy Patton offered, on February 5, 2019, to surrender his license to practice law and to resign from Bar membership.
    ¶ 4 Respondent's affidavit of resignation reflects that: (a) his resignation was freely and voluntarily made; (b) he was not subject to coercion or duress; and (c) he is fully aware of the legal consequences that will flow from his resignation.
    ¶ 5 The affidavit of resignation states Respondent's awareness that the Oklahoma Bar Association has investigated the following criminal conviction which suffices as a basis for discipline:
   ¶ 6 State of Oklahoma v. Matthew Jeremy Patton , Washita County, Case No. CF-2017-46: On April 19, 2017 Patton was charged with Burglary in the Second Degree (Count I) and Grand Larceny in House (Count II). On August 22, 2017, Count I was amended to a misdemeanor under 21 O.S.2011 § 22, and Count II was dismissed with prejudice. Patton entered a plea of guilty to violating 21 O.S.2011 § 22, Acts Resulting in Gross Injury. Patton received a two-year deferred sentence until August 21, 2019.

¶ 7 Respondent is aware that, if proven, this grievance would constitute violations of Rules 8.4 (a) and (b), Oklahoma Rules of Professional Conduct; Rule 1.3 Oklahoma Rules Governing Disciplinary Procedures; and Respondent's oath as a licensed Oklahoma lawyer.

¶ 8 Respondent waives any and all right to contest the allegations in a bar disciplinary proceeding.

¶ 9 Respondent states his awareness that a RGDP Rule 8.2 resignation pending disciplinary proceedings may be either approved or disapproved by the Oklahoma Supreme Court.

¶ 10 Respondent is aware and understands the implications of the Order of Immediate Interim Suspension entered on December 17, 2018. He states that he waived his right to challenge the interim suspension and that on the date of the suspension he was not engaged in the practice of law nor engaged in legal representation on behalf of any client.

¶ 11 Respondent agrees to comply with RGDP Rule 9.1, and acknowledges that his license to practice law may be reinstated only upon compliance with the conditions and procedures prescribed by RGDP Rule 11.

¶ 12 Respondent recognizes, understands, and agrees that he may not apply for reinstatement of his legal license (and of his membership in the Bar) before the expiration of five years from the effective date of this order.

¶ 13 Respondent acknowledges that his actions may result in claims against the Client Security Fund and agrees to reimburse the Fund for any disbursements made or to be made because of his actions, with applicable statutory interest, prior to the filing of any application for reinstatement.

¶ 14 Respondent states that he has surrendered his Oklahoma Bar Association membership card to the Office of the General Counsel.

¶ 15 Respondent states that he acknowledges and agrees to cooperate with the Office of the General Counsel in the task of identifying any active client cases wherein documents and files need to be returned or forwarded to new counsel, and in any client case where fees or refunds are owed by Respondent.

¶ 16 Respondent acknowledges the Oklahoma Bar Association has incurred costs in the investigation and prosecution of this matter in the amount of $8.04, and agrees he is responsible for reimbursement of these costs.

¶ 17 Respondent's resignation during the pendency of disciplinary proceedings is in compliance with RGDP Rule 8.1.

¶ 18 Respondent's name and address appear on the official Bar roster as: Matthew Jeremy Patton, O.B.A. No. 32189, 14317 Brinley Way, Oklahoma City, OK 73142.

¶ 19 IT IS THEREFORE ORDERED THAT the resignation of Matthew Jeremy Patton tendered during the pendency of disciplinary proceedings be approved, and the resignation is deemed effective on the date it was executed and filed in this Court, February 5, 2019.

¶ 20 IT IS FURTHER ORDERED that Respondent's name be stricken from the Roll of Attorneys and he may not apply for reinstatement of his license to practice law (and of his membership in the Bar) before the lapse of five years from the effective date of this order (February 5, 2019); Respondent shall comply with RGDP Rule 9.1.

¶ 21 IT IS FURTHER ORDERED that Complainant's request for reimbursement of costs is sustained. Respondent shall pay costs in the amount of $8.04 within thirty (30) days from the date of this order. Any consideration of any future Rule 11 petitions is conditioned upon such payment.

¶ 22 DONE BY ORDER OF THE SUPREME COURT this 4th day of March, 2019.

ALL JUSTICES CONCUR.