A. The agency conducting proceedings under the Administrative Procedures Act may, subject to rules of privilege and confidentiality recognized by law, requiring [require] the furnishing of information, the attendance of witnesses and the production of books, records, papers or other objects necessary and proper for the purposes of the proceeding. The agency, in any proceeding, or any party to an adjudicatory proceeding before it, may take the depositions of witnesses, including parties, within or without the state, in the same manner as provided by law for the taking of depositions in civil actions in the district court, and they may be used in the same manner and to the same extent as permitted in the district court.

B. In furtherance of the powers granted by Subsection A of this section, agencies may issue subpoenas requiring, upon reasonable notice, the attendance and testimony of witnesses and the production of any evidence, including books, records, correspondence or documents, relating to any matter in question in the proceeding. Agencies may administer oaths and affirmations, examine witnesses and receive evidence. The power to issue subpoenas may be exercised by any member of the agency or by any person or persons designated by the agency for the purpose.

C. The agency may prescribe the form of subpoena, but it shall adhere, insofar as practicable, to the form used in civil actions in the district court unless another manner is provided by any law. Witnesses summoned shall be paid the same fees for attendance and travel as in civil actions in the district court unless otherwise provided by any law.

D. Any party to an adjudicatory proceeding is entitled as of right to the issue of subpoenas in the name of the agency conducting the proceeding. Upon written application to the agency, it shall forthwith issue the subpoenas requested. However issued, the subpoena shall show upon its face the name and address of the party at whose request the subpoena was issued. Unless otherwise provided by any law, the agency need not pay fees for attendance and travel to witnesses summoned by a party.

E. Any witness summoned may petition the agency or the district court of the county where he resides or, in the case of a corporation, the county where it has its principal office, to vacate or modify a subpoena served on the witness. The agency shall give prompt notice to the party, if any, who requested issuance of the subpoena. After investigation the agency considers appropriate, it may grant the petition in whole or part upon a finding that the testimony or the evidence whose production is required does not relate with reasonable directness to any matter in question, or that a subpoena for the attendance of a witness or the production of evidence is unreasonable or oppressive, or has not been issued a reasonable period in advance of the time when the evidence is requested or for any other reason that justice requires.

F. In case of disobedience to any subpoena issued and served under this section or to any lawful agency requirement for information, or for the refusal of any person to testify to any matter regarding which he may be interrogated lawfully in a proceeding before an agency, the agency may apply to the district court in the county of the person's residence for an order to compel compliance with the subpoena or the furnishing of information or the giving of testimony. Forthwith, the district court shall cite the respondent to appear and shall hear the matter as expeditiously as possible. If the disobedience or refusal is found to be unlawful, the district court shall enter an order requiring compliance in full or as modified. Disobedience of the court order shall be punished as contempt of the district court in the same manner and by the same procedure as provided for like conduct committed in the course of judicial proceedings.

G. Agency files and records, including but not limited to investigation reports, statements, memoranda, correspondence or other data pertaining to the matter under consideration scheduled for hearing or other agency action, shall be available for inspection and copying by any party of interest or other person affected by the pending matter, at all reasonable times prior to, during or after any hearing, proceeding or other proposed agency action. If the agency or any party asserts that any such information contained in the agency files and records should not be made available for any reason of confidentiality or privilege recognized by law, the question shall be determined by the district court of the county in which the requesting party resides, upon application by the party requesting the information and after hearing thereon following reasonable notice to the party asserting confidentiality or privilege.

H. No officer, employee or agent engaged in the performance of investigative or prosecuting functions for any agency in any case shall, in that or a factually related case, participate or advise in the decision, recommended decision or agency review except as a witness or counsel in a public proceeding. Additionally, any hearing examiner, member of a review board or agency member shall withdraw from any proceedings in which he cannot accord a fair and impartial hearing or consideration. Any party may request a disqualification of any hearing examiner, member of a review board or agency member on the grounds of the person's inability to be fair and impartial by filing an affidavit promptly upon the discovery of the alleged grounds for disqualification, stating with particularity the grounds upon which it is claimed that the person cannot be fair and impartial. The disqualification shall be mandatory if sufficient factual basis is set forth in the affidavit of disqualification. The agency shall, by rule, provide for the appointment of a fair and impartial replacement for the person disqualified. If the replacement is disqualified, or in any case not otherwise provided for, a replacement shall be appointed by a justice of the supreme court.

History: 1953 Comp., § 4-32-15, enacted by Laws 1969, ch. 252, § 15.

Cross references. — For per diem and mileage for witnesses, see 38-6-4 NMSA 1978.

For privileges generally, see 38-6-6, 38-6-7 NMSA 1978 and Rules 11-501 to 11-514 NMRA.

For depositions generally, see Rules 1-026 to 1-032 NMRA.

For subpoenas, see Rule 1-045 NMRA.

Administrative Procedures Act demonstrates that depositions are permissible under administrative law, to assist the agency and other parties in obtaining a fair hearing. In re Miller, 1975-NMCA-116, 88 N.M. 492, 542 P.2d 1182, cert. denied, 89 N.M. 5, 546 P.2d 70, rev'd on other grounds, 1976-NMSC-039, 89 N.M 547, 555 P.2d 142.

Employers may be present at discovery proceedings conducted by the environmental improvement division. Kent Nowlin Constr., Inc. v. Envtl. Improvement Div., 1982-NMSC-094, 99 N.M. 294, 657 P.2d 621.

Law reviews. — For article, "How to Stand Still Without Really Trying: A Critique of the New Mexico Administrative Procedures Act," see 10 Nat. Resources J. 840 (1970).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 2 Am. Jur. 2d Administrative Law § 385 et seq.

Subpoenas: power of administrative agency, in investigation of nonjudicial nature, to issue subpoenas against persons not subject to agency's regulatory jurisdiction, 27 A.L.R.2d 1208.

Power of court under 5 USCS § 552(a)(4)(B) to examine agency records in camera to determine propriety of withholding records, 60 A.L.R. Fed. 416.

73A C.J.S. Public Administrative Law and Procedure §§ 124, 132.