1. law, govt and politics

February 4, 2015 • Volume 54, No. 5
Inside This Issue
Table of Contents......................................................3
Indian Law Section
Mixer at Yanni’s Lemoni Lounge........................... 5
Young Lawyers Division
Board Vacancies.................................................. 6
Volunteers Needed............................................. 6
State of the Judiciary Strong, But Needs More
Financial Support, Chief Justice Tells Legislature,
by D.D. Wolohan...................................................... 7
New Mexico Court of Appeals Announces
Judge Michael E. Vigil Elected Chief Judge......... 8
2014 Prosecutors Section Awards......................... 8
Disciplinary Counsel: Disciplinary Quarterly
Report, Oct. 1–Dec. 31, 2015................................. 9
Clerk’s Certificates .................................................16
From the New Mexico Supreme Court
2014-NMSC-039,
No. 33,376:
State v. Gonzales.................................................20
2014-NMSC-040,
No. 34,187:
State v. Suskiewich.............................................22
2015-NMSC-001,
No. 34,646:
State ex rel. Cisneros v. Martinez....................25
Sunflowers by Barbara Garrett (see page 3)
You’re invited!
Wednesday, Feb. 18 • 4-6 p.m.
See back cover for details.
Melia Caribe Tropical, Punta Cana, Dominican Republic
All-Inclusive Resort • May 16-23, 2015
Join 2015 State Bar President Martha Chicoski for this incredible trip
and take the option to earn all of your CLE credits for the year.
Only $714 per person based on double occupancy.
Contact Terri Nelson with Vacations To Go by Feb. 27 to reserve a room.
Flight reservations may be made on your own or through Terri.
1-800-998-6925, ext. 8704 • [email protected]
CLE course information will be available in January.
Teach a one- to two-hour class and get free CLE registration ($325).
Send proposals to Christine Morganti, [email protected].
CENTER FOR LEGAL EDUCATION
2
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
Table of Contents
Officers, Board of Bar Commissioners
Mary Martha Chicoski, President
J. Brent Moore, President-Elect
Scotty A. Holloman, Vice President
Dustin K. Hunter, Secretary-Treasurer
Erika E. Anderson, Immediate Past President
Board of Editors
Jamshid Askar
Nicole L. Banks
Alex Cotoia
Kristin J. Dalton
Curtis Hayes
Bruce Herr
Maureen S. Moore
Andrew Sefzik
Mark Standridge
Carolyn Wolf
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • [email protected]
Communications Coordinator
Evann Kleinschmidt
505-797-6087 • [email protected]
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
505-797-6058 • [email protected]
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2015, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: [email protected]. • www.nmbar.org
February 4, 2015, Vol. 54, No. 5
Notices .................................................................................................................................................................4
State of the Judiciary Strong, But Needs More Financial Support,
Chief Justice Tells Legislature, by D.D. Wolohan........................................................................................7
New Mexico Court of Appeals Announces Judge Michael E. Vigil Elected Chief Judge..........8
2014 Prosecutors Section Awards...............................................................................................................8
Disciplinary Counsel: Disciplinary Quarterly Report, Oct. 1–Dec. 31, 2015..................................9
Legal Education Calendar........................................................................................................................... 11
Writs of Certiorari .......................................................................................................................................... 13
Court of Appeals Opinions List.................................................................................................................. 15
Clerk’s Certificates ......................................................................................................................................... 16
Recent Rule-Making Activity...................................................................................................................... 19
Opinions
From the New Mexico Supreme Court
2014-NMSC-039, No. 33,376: State v. Gonzales......................................................................... 20
2014-NMSC-040, No. 34,187: State v. Suskiewich..................................................................... 22
2015-NMSC-001, No. 34,646: State ex rel. Cisneros v. Martinez........................................... 25
Advertising....................................................................................................................................................... 33
Meetings
State Bar Workshops
February
February
4
Employment and Labor Law Section BOD,
Noon, State Bar Center
4
Divorce Options Workshop
6 p.m., State Bar Center
11
Taxation Section BOD,
11 a.m., via teleconference
4
Civil Legal Fair
10 a.m.–1 p.m.,
Second Judicial District Court, Third Floor
Conference Room, Albuquerque
11
Children’s Law Section BOD,
Noon, Juvenile Justice Center
12
Business Law Section BOD,
4 p.m., via teleconference
12
Public Law Section BOD,
Noon, Montgomery and Andrews, Santa Fe
13
Animal Law Section BOD,
Noon, State Bar Center
13
Prosecutors Section BOD,
Noon, State Bar Center
10
Legal Resources for the Elderly Workshop
9:30–10:30 a.m., Presentation
Noon–3 p.m., Clinics
Mary Esther Gonzales Senior Center,
Santa Fe
25
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
26
Consumer Debt/Bankruptcy Workshop
5:30 p.m., The Law Office of Kenneth Egan,
Las Cruces
Cover Artist: Barbara Garrett is an American Impressionist living in New Mexico who is captivated by the glint of sunshine
on a bay stallion or celestial dawns over the Rio Grande. She strives to paint the light in the Land of Enchantment, including
the powder blue skies and pink shaded earth, and brings to her paintings the heat of July and frost of November.
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
3
Notices
Court News
New Mexico Supreme Court
Board of Legal Specialization
Professionalism Tip
With respect to opposing parties and their counsel:
I will be courteous and civil, both in oral and in written communications.
Comments Solicited
The following attorneys are applying
for certification as a specialist in the
areas of law identified. Application is
made under the New Mexico Board
of Legal Specialization, Rules 19-101
through 19-312 NMRA, which provide
that the names of those seeking to
qualify shall be released for publication. Further, attorneys and others are
encouraged to comment upon any of the
applicant’s qualifications within 30 days
after the publication of this notice. Address comments to New Mexico Board
of Legal Specialization, PO Box 93070,
Albuquerque, NM 87199.
Estate Planning, Trusts and Probate Law
Steven P. Fisher
Family Law
Kymberleigh G. Dougherty
Linda Lillie Ellison
Natural Resources Law
Jay F. Stein
Second Judicial District Court
Mass Reassignment
Gov. Susana Martinez announced the
appointment of Debra Ramirez to fill the
vacancy of Division XXIV at the Second
Judicial District Court. Effective Jan. 9,
Judge Debra Ramirez, was assigned family
court cases previously assigned to Division
VIII. Pursuant to Supreme Court Rule
1-088.1 parties who have not yet exercised
a peremptory excusal will have 10 days
from Feb. 11 to excuse Judge Ramirez.
Notice of Procedure Change
Pursuant to Supreme Court Administrative Order 14-8300-25, newly adopted
LR2-400 NMRA, and LR2-400.1 for the
Special Calendar members of the legal
community should be advised of the following significant changes in procedure.
In the Criminal division, effective Feb.
2, the vast majority of cases were reassigned to different criminal judges. The
reassignment of cases was completed by
Jan. 23, with an effective date for reassignment of Feb. 2. Individual notices of
reassignment will be sent out for all cases
in the new calendar, as well as in all cases,
regardless of whether the case is assigned
to the new calendar or the special calendar,
where a defendant is represented by a
4
member of the private bar. For all other
cases in the special calendar, a separate
email notice regarding reassignment will
be sent to the Law Offices of the Public
Defender and the District Attorney’s Office.
11th Judicial District Court
Investiture Ceremony for
Bradford J. Dalley
Members of the legal community are
invited to the investiture ceremony for
Hon. Bradford J. Dalley, for the office of
judge of the 11th Judicial District Court.
The ceremony will be at noon, Feb. 19, at
the District Courthouse in Aztec. A reception will follow the ceremony. R.S.V.P. for
the reception to Tanya by Feb. 11 at 505320-5242.
Notice of Mass Reassignment to
Judge Dalley
Under the authority of Rule 23-109
NMRA, the Chief Judge of the 11th
Judicial District Court directed a mass
reassignment of all family and probate/
mental health cases, with the exception
of abuse and neglect cases, effective Feb.
2 from Division VIII, to Division I, Bradford J. Dalley, presiding. Pursuant to Rule
1-088.1 NMRA, parties who have not yet
exercised a peremptory excusal in a case
being reassigned in this mass reassignment
will have 10 business days from Feb. 25 to
excuse Judge Dalley.
13th Judicial District Court
Notice of Case Reassignments
Gov. Susana Martinez announced
the appointment of Pedro G. Rael to fill
the vacancy in Division IV at the 13th
Judicial District Court, Cibola County,
due to the retirement of Judge Camille
Martinez Olguin. Effective Jan. 19, Judge
Rael was assigned to all cases previously
assigned to Judge Olguin. Pursuant to
NMRA 1-088.1, parties who have not
yet exercised a peremptory excusal will
have until March 2 to excuse the successor judge. For more information, contact
Chief Clerk Kathy Gallegos at 505-2878831, ext. 3110, or Leadworker Toinette
Garcia, ext. 3126.
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
Volunteers Needed for Legal Clinics
The 13th Judicial District Court is
seeking volunteers to help pro se litigants
in its monthly legal clinics. There is little
time commitment. Volunteers are needed
in Cibola, Valencia and Sandoval counties. For more information or to sign up,
contact Staff Attorney Beth Collard at
505-865-2464 or [email protected].
Bernalillo County
Metropolitan Court
Investiture Ceremony of Judge
Kenny C. Montoya
The judges and employees of the
Bernalillo County Metropolitan Court
invite members of the legal community
and the public to attend the investiture
of the Hon. Kenny C. Montoya, Division XV. The ceremony will be held at
5:15 p.m. on Feb. 12 in the Bernalillo
County Metropolitan Court Rotunda.
A reception will follow after in the Metropolitan Court Jury Assembly Room.
Judges who wish to participate in the
ceremony, are asked to please bring their
robes and report to the 1st Floor Viewing
Room by 5 p.m.
Mass Reassignment of Cases
Pursuant to Rule 23-109 NMRA,
Bernalillo County Metropolitan Court
Chief Judge Henry A. Alaniz announced
that effective Jan. 20, all criminal court
cases previously assigned to Division III
(previously assigned to Judge Cristina
Jaramillo), were reassigned to newly appointed Judge R. John Duran. Parties
who have not yet exercised a peremptory
excusal, pursuant to Supreme Court Rule
7-106 NMRA, will have 10 business days
from Jan. 20 to excuse Judge Duran.
U.S. District Court for the
District of New Mexico
Attorney Federal Bar Dues
With the concurrence of the Article III
judges of the U.S. District Court for the
District of New Mexico, the Federal Bar
dues have been set at $25 for 2015. Bar
dues may be paid online via CM/ECF. For
more information regarding paying Bar
dues, visit www.nmcourt.fed.us.
State Bar News
Attorney Support Groups
• Feb. 9, 5:30 p.m.
UNM School of Law, 1117 Stanford
NE, Albuquerque, Room 1119 (The
group meets the second Monday of the
month.)
• Feb. 16, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
• March 2, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
For more information, contact Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
Animal Law Section
February Animal Talk on
Pending Legislation
The Animal Law Section’s first Animal
Talk of the year will be at noon on Feb. 20
at the State Bar Center. Section Chair Guy
Dicharry will talk about pending legislation related to animal law issues. Beverages
and cookies will be provided. R.S.V.P. to
Evann Kleinschmidt, ekleinschmidt@
nmbar.org by Feb. 19.
Board of Bar Commissioners
Commissioner Vacancy
Second Bar Commissioner District
(Cibola, McKinley, San Juan and
Valencia counties)
A vacancy exists in the Second Bar
Commissioner District, representing
Cibola, McKinley, San Juan and Valencia
counties, due to Bradford J. Dalley’s
appointment to the Bench. The Board
will make the appointment at its Feb. 27
meeting to fill the vacancy until the next
regular election of Commissioners, and
the term will run through Dec. 31, 2015.
Active status members with a principal
place of practice located in the Second
Bar Commissioner District are eligible
to apply. Applicants should plan to attend the 2015 Board meetings scheduled
for May 8, July 10, Sept. 30 (Colorado
Springs in conjunction with the Annual
Meeting), and Dec. 9 (Santa Fe). Members interested in serving on the Board
should submit a letter of interest and
résumé to Executive Director Joe Conte,
State Bar of New Mexico, PO Box 92860,
Albuquerque, NM 87199-2860, by Feb.
13.
Indian Law Section
Mixer at Yanni’s Lemoni Lounge
The Indian Law Section is having a
mixer at Yanni’s Lemoni Lounge, 5-7 p.m.,
on Feb. 12. The lounge is at 3109 Central
Avenue NE in Albuquerque. All members
and non-members interested in the Indian
Law Section are encouraged to attend and
network. The mixer also serves as a meet
and greet for those participating in the ILS
mentorship program. The mixer is free to
ILS members and one guest and free for
law students. Non-members are encouraged to join or pay $15 to attend the mixer.
Paralegal Division
Luncheon CLE Series
The Paralegal Division invites members
of the legal community to bring a lunch
and attend “Substance Abuse and Other
Mental Health Disorders: How JLAP
Can Help” (1.0 G) presented by Claire
McDaniel and Jill Yeagley. The program
will be held from noon–1 p.m., Feb. 11, at
the State Bar Center (registration fee for
attorneys–$16, members of the Paralegal
Division–$10, non-members–$15). Registration begins at the door at 11:45 a.m.
For more information, contact Cheryl
Passalaqua, 505-247-0411, or Carolyn
Winton, 888-4357. Telecast to three locations:
•Santa Fe: Montgomery & Andrews,
325 Paseo de Peralta, Santa Fe. Contact
Donna Ormerod, 505-570-4593.
• R oswell: Atwood, Malone, Turner &
Sabin, 400 N. Pennsylvania, Ste. 1100.
Contact Tomma Shumate, 575-622-6221.
•Farmington: Titus & Murphy, 2021 E.
20th Street. Contact Shannon Krens,
505-326-6503.
Public Law Section
Accepting Nominations for Annual
Public Lawyer Award
The Public Law Section is accepting
nominations for the Public Lawyer of the
Year Award, which will be presented at
the state capitol on May 1. Visit http://
www.nmbar.org/Nmstatebar/About_Us/
Public_L aw/L aw yer_of_the_Year_
Awards.aspx to view previous recipients
and award criteria. Nominations are due
no later than 5 p.m. on March 2. Send
nominations to James Martin, 105 Pine St.,
Santa Fe, NM 87501, or email jmartinnm@
gmail.com. The selection committee will
consider all nominated candidates and
may nominate candidates on its own.
Featured
Member Benefit
MeetingBridge offers easy-to-use
teleconferencing especially designed for law
firms. Set up calls and notify attendees in one
symple step. Client codes can be entered for
easy tracking. Operator assistance is available
on every call.
Contact Dave Martin
1-888-723-1200, ext. 627
[email protected]
www.meetingbridge.com/371
Address Changes
All New Mexico attorneys must notify
both the Supreme Court and the State
Bar of changes in contact information.
Supreme Court
Email:attorneyinfochange
@nmcourts.gov
Fax: 505-827-4837
Mail:PO Box 848
Santa Fe, NM 87504-0848
State Bar
Email: [email protected]
Fax: 505-797-6019
Mail: PO Box 92860
Albuquerque, NM 87199
Online:www.nmbar.org
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org/JLAP/JLAP.html
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
5
Solo and Small Firm Section
Volunteers need no prior experience with
wills. Contact Spencer Edelman at sle@
modrall.com or 505-848-1857.
Judge Harris Hartz, of the U.S. Court of
Appeals for the 10th Circuit, will address
“How Judges Think” at the Feb. 17 Solo
and Small Firm Section meeting. The
Board will meet at 11:30 a.m., followed
by the noon presentation. Lunch will be
included. R.S.V.P. to Evann Kleinschmidt
at [email protected] by Feb. 16.
All are invited.
Senior U.S. Attorney trial counsel Tara
Neda will be speaking at the March 17
lunch meeting about her special prosecutor work in Cameroon and Yemen and
sharing images of those countries. She will
discuss the conflicts between traditional
tribal societies and efforts to teach a more
Western criminal justice system.
Volunteers Needed at Veterans
Legal Clinic
Judge Hartz Speaking at the State
Bar Center
Young Lawyers Division
Board Vacancies
The YLD Board is seeking two regional
directors for its board: Region 1, representing San Juan and McKinley counties; and
Region 3, representing the greater Roswell
area/southeastern New Mexico. Among
the duties include attending board meetings by phone or in person, and attending
and organizing YLD events in your community. Principal place of practice must be
in the region applicants would represent.
Residency in the region is not required.
Send letters of interest and résumé to YLD
Chair Ken Stalter, [email protected], by
March 2. For more information, contact
D.D. Wolohan, [email protected].
Four Corners Regional Conference
YLD is participating in a regional leadership summit for YLD members in New
Mexico, Arizona, Utah and Colorado April
9-13 in Aspen, Colo. The conference will include speakers and panels who will discuss
leadership skills. In addition, the conference
will provide networking, a service project
and skiing. For more information, contact
Casey Kannenberg, ckannenberg@fclaw.
com, Colorado Bar Association YLD.
Volunteers Needed for Wills for
Heroes in Albuquerque
YLD is seeking volunteer attorneys for
its Wills for Heroes event for APD officers
at the Albuquerque Police Academy, 9 a.m.
to noon, on Saturday, Feb. 21. Attorneys
will provide free wills, healthcare and
financial powers of attorney and advanced
medical directives for first responders
6
The Young Lawyers Division and the
New Mexico Veterans Affairs Health Care
System are holding clinics for the Veterans
Civil Justice Legal Initiative from 9 a.m.–
noon, the second Tuesday of each month at
the New Mexico Veterans Memorial, 1100
Louisiana Blvd. SE, Albuquerque. Breakfast
and orientation for volunteers begin at 8:30
a.m. No special training or certification
required. Volunteers can give advice and
counsel in their preferred practice area(s).
The next clinic is Feb. 10. To volunteer,
contact Keya Koul, [email protected].
UNM
Women’s Law Caucus
2015 Justice Mary Walters Award
Dinner
Join the Women’s Law Caucus to
honor Heidi Nesbitt of the American
Indian Law Center and Hon. Anne Kass
for the efforts they have made for New
Mexico. The Justice Mary Walters award
dinner will be held at 6 p.m., Feb. 27, at
the University of New Mexico School of
Law. Tickets are $55 per person or $400
for a table of eight. To purchase tickets or
for sponsorship information, visit http://
lawschool.unm.edu/students/organizations/wlc/. Make checks payable to the
Women’s Law Caucus and send to 1117
Stanford Drive NE, Albuquerque, NM
87106. For more information, contact
Donna Baslee, [email protected], or
Elizabeth Reitzel, [email protected].
Other Bars
American Bar Association
Dispute Resolution Section
Annual Conference
The American Bar Association’s Dispute Resolution Section will hold its
annual spring conference from April
15–18 in Seattle. Early bird rates are
effective until Feb. 20. For more information, visit http://shop.americanbar.org/
ebus/ABAEventsCalendar/EventDetails.
aspx?productId=137037024.
Opportunity To Write for ABA’s
‘Litigation News’
The American Bar Association Litigation Section’s national newsmagazine,
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
Litigation News, seeks excellent writers
interested in joining the editorial board
as contributing editors. Contributing
editors write four articles per year and
attend two ABA conferences. This is a
great opportunity for members of the
legal community to get their name out
there and connect with attorneys across
the country. Litigation News is published
quarterly in print, and adds stories at
least weekly to its online version. Its
print circulation exceeds 50,000. Those
interested should send a résumé and
writing sample to LitNewsWriteOn@
gmail.com by Feb. 13. We will notify
those applicants selected to participate
in our annual write-on competition by
March 1. You do not need to be an ABA
member to participate in the writing
competition, but do need to join the
organization to serve as a contributing
editor.
Federal Bar Association
Supreme Court Review CLE
The New Mexico chapter of the Federal
Bar Association will host a luncheon, followed by a CLE program, featuring Erwin
Chemerinsky, dean of the University of
California, Irvine, School of Law, distinguished professor of law, and Raymond
Pryke professor of First Amendment law.
Chemerinsky will provide a “Supreme
Court Review” at the April 30 CLE in Santa
Fe. One hour of CLE credit is anticipated
for this event. The cost and the location of
the event will be announced in the coming
weeks.
Other News
Volunteer Attorney Program
Representing Victims of
Violence CLE
The Volunteer Attorney Program is
hosting a CLE entitled “Representing
Victims of Violence at Order of Protection Hearings” (2.0 G, pending MCLE
approval) from 1:30 –3:30 p.m., Feb. 20,
at the State Bar Center. The CLE will
be presented by Hon. Debra Ramirez,
Second Judicial District Family Court
Judge, and Rosemary Traub, New Mexico
Legal Aid attorney. The CLE is free for
VAP volunteers. Donations welcome from
non-volunteers ($50 or more per person
suggested). To attend this CLE, contact
Aja Brooks at 505-797-6040 or ajab@
nmlegalaid.org.
State of the Judiciary Strong,
But Needs More Financial Support, Chief Justice Tells Legislature
Chief Justice Barbara J. Vigil address the New Mexico Senate and House of Representatives in Santa Fe.
By D.D. Wolohan
C
hief Justice Barbara J. Vigil spoke before a joint session of
the New Mexico Legislature on Jan. 22, touting the judiciary’s accomplishments and seeking increased funding,
including for two more judgeships.
The Chief Justice received a very warm welcome from the legislators, who listened attentively. Recalling the words of George
Washington, the Chief Justice said, “The administration of justice
is the firmest pillar of government,” adding her own words, “because it must always rest beyond political, socioeconomic, racial
and regional lines. … We must remember that a strong judiciary
strengthens every segment of our society.
“In fiscal year 2014, trial court judges presided over 399,000 new
and reopened cases. … Our courts are called upon to address
the aftermath of strained social and economic conditions such
as crime, drug and alcohol abuse, child and domestic abuse, and
broken business and family relationships. We continually work
with all of our justice partners … to make the most of every dollar
invested,” she said.
“The work of the judiciary touches the lives of every New
Mexican, yet we receive less than 3 percent of the general fund
appropriation,” the Chief Justice said, leading up to her FY2016
budget request: An overall increase to the judiciary’s base budget
of 5.7 percent to provide critical funding to magistrate courts
($3,096,700); jury and court interpreter funding ($1,666,900); and
court appointed attorneys ($871,000). Funding for our problemsolving courts—DWI and drug courts ($775,000 increase); and
two new judgeship positions, one in the Second District, the other
in Las Cruces, assigned to Children’s Court cases.
The accomplishments Chief Justice Vigil cited for 2014 include
improved court processes in Bernalillo County’s innovative
criminal case management process, implementation of the Odyssey case management system in all trial courts, the judiciary’s
extensive mediation and alternative dispute resolution services
and improvement in processes for water rights adjudication cases.
The rest of the Supreme Court attended the address, in addition
to many other judges throughout the state. This year’s 60-day
Legislative session concludes on March 21.
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
7
The New Mexico Court of Appeals Announces
Judge Michael E. Vigil, Elected Chief Judge
The judges of the Court of Appeals unanimously elected Judge
Michael E. Vigil as their new
Chief Judge during their regular
meeting on Jan. 20, 2015, in Santa
Fe. He will serve a two-year term
as Chief Judge. A New Mexico
native, Judge Vigil graduated
from Santa Fe High School and
the College of Santa Fe before
receiving his law degree from
Georgetown University Law Center in Washington, D.C. Judge
Vigil has served on the Court of
Appeals since 2003.
New Chief Judge Vigil (left)
is sworn in by outgoing Chief
Ju dg e R o d e r i ck Ke nnedy
2014 Prosecutors Section Awards
The Prosecutors Section met at the State Bar Center in December 2014 for its annual meeting and to celebrate its outstanding prosecutors. From left are Prosecutors Section Board member Devin Chapman, Board member Clara Moran (2015 section chair), Board
Chair Ken Fladager, Outstanding DWI Prosecutor Timothy Callaway, Outstanding White Collar Crime Prosecutor Lynne-Anne
Maxwell, Board member Phyllis Bowman and Outstanding Child Abuse Prosecutor Nicholas Marshall. Not pictured is Outstanding
Domestic Violence Prosecutor Shellie Patscheck. Congratulations to all!
From left, Section Board Member Devin Chapman, 2015 Section Chair Clara Moran, 2014 Section Chair Ken Fladager, awardee Timothy
Callaway, awardee Lynne-Anne Maxwell, awardee Nicholas Marshall, and Section Board Member Phyllis Bowman
8
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
Report by Disciplinary Counsel
Reporting Period: October 1–December 31, 2014
Disciplinary Quarterly Report
Final Decisions
Final Decisions of the NM Supreme Court..................................3
Matter of Marcos Gonzalez, Esq. (Disciplinary No. 05-2014691) New Mexico Supreme Court entered an order indefinitely
suspending Respondent from the practice of law for no less
than six (6) months effective immediately for general neglect,
failure to communicate, trust account violations, and general
incompetence on matters. Respondent was ordered to make
restitution to his client and any Client Protection Fund claims
paid; pay costs to the Disciplinary Board; comply with requirements for minimum continuing legal education (MCLE); take
and pass the Multistate Professional Responsibility Examination; have an audit performed and meet with a CPA regarding
trust accounts; and retain a probation supervisor for at least
three (3) years after the suspension is served.
Matter of Alain Jackson, Esq. (Disciplinary Nos. 11-2011-436
and 11-2013-681) New Mexico Supreme Court entered an
order permanently disbarring Respondent from the practice
of law for failing to comply with an Order of the Supreme
Court. Respondent was ordered to turn all files over to the
disciplinary counsel; provide a restitution payment schedule
for his clients; and pay costs to the Disciplinary Board.
Matter of ________ (Sealed matter) New Mexico Supreme
Court entered an order placing Respondent on disability inactive status effective immediately and staying any disciplinary
proceedings until Respondent is found eligible for reinstatement. Respondent was further ordered to turn all files over to
disciplinary counsel and to give access to any IOLTA accounts.
Summary Suspensions
Total number of attorneys summarily suspended.......................0
Administrative Suspensions
Total number of attorneys administratively suspended..............0
Disability Suspensions
Total number of attorneys placed on disability suspension.......0
Charges Filed
Charges were filed against an attorney for allegations of failing to provide competent representation; engaging in the
representation involving concurrent conflict of interest; and
engaging in conduct that is prejudicial to the administration
of justice.
Charges were filed against an attorney for allegations of making
false statement of material fact or law to a tribunal or failing
to correct a false statement of material fact or law previously
made to the tribunal by the lawyer; by offering evidence that
the lawyer knows to be false; by engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation; and engaging
in conduct prejudicial to the administration of justice.
Charges were filed against an attorney for allegations of failing to provide competent representation to a client; failing to
represent the client diligently; failing to expedite litigation;
and by engaging in conduct prejudicial to the administration
of justice.
Charges were filed against an attorney for allegations of failing to provide competent representation to a client; failing to
represent the client diligently; failing to communicate with
the client and making false statements to the client about the
status of the case; failing to expedite litigation; by knowingly
making a false statement of material fact in connection with a
disciplinary matter; and engaging in conduct that is prejudicial
to the administration of justice.
Charges were filed against an attorney for allegations of failing to provide competent representation; engaging in the
representation involving concurrent conflict of interest; and
engaging in conduct that is prejudicial to the administration
of justice.
Charges were filed against an attorney for allegations of failing to provide competent representation to a client; failing to
represent the client diligently; failing to expedite litigation;
and by engaging in conduct prejudicial to the administration
of justice.
Charges were filed against an attorney for allegations of failing
to provide competent representation to a client; by unlawfully
obstructing another party’s access to evidence; by failing to
obey the rules of a tribunal; by engaging in conduct disruptive to the tribunal; by using methods to obtain evidence that
violates the legal rights of a third person; and by engaging in
conduct prejudicial to the administration of justice.
Charges were filed against an attorney for allegations of failing
to provide competent representation to a client; by unlawfully
obstructing another party’s access to evidence; failing to obey
the rules of a tribunal; by engaging in conduct disruptive to the
tribunal; by using methods to obtain evidence that violates the
legal rights of a third person; by having managerial authority
over a lawyer and failing to make reasonable efforts to insure
that the subordinate lawyer conformed to the Rules of Professional Conduct; by having direct supervisory authority over
another lawyer and failing to make reasonable efforts to ensure
that the other lawyer conformed to the Rules of Professional
Conduct; by having knowledge of specific misconduct and
ratifying that conduct and having known of the conduct at
a time when its consequences could have been avoided or
mitigated but failed to take remedial action; and by engaging
in conduct prejudicial to the administration of justice.
Petitions for Administrative Suspension Filed
Petitions for administrative suspension filed...............................2
Matter Madeline E. Melka, Esq. (Disciplinary No. 11-2014711) The office of Disciplinary Counsel filed a petition for
administrative suspension against Respondent for failing to
respond to repeated requests for information.
Matter of David Proper, Esq. (Disciplinary No. 12-2014-712)
The office of Disciplinary Counsel filed a petition for administrative suspension against Respondent for failing to respond
to repeated requests for information.
Petitions for Reciprocal Discipline Filed
Petitions for reciprocal discipline filed..........................................0
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
9
Petitions for Reinstatement Filed
Petitions for reinstatement filed ....................................................0
Formal Reprimands
Total number of attorneys formally reprimanded.......................0
Informal Admonitions
Total number of attorneys admonished .......................................4
An attorney was informally admonished for engaging in the
representation involving concurrent conflict of interest and for
representing a party against former clients in the same action
without written informed consent in violation of Rules 16-107,
and 16-109 of the Rules of Professional Conduct.
An attorney was informally admonished for failing to obey
the rules of a tribunal; seeking to influence a juror by means
prohibited by law; violating the special responsibilities of a
prosecutor; and engaging in conduct prejudicial to the administration of justice in violation of Rule 16-304, 16-350(A),
16-308, and 16-804(D) of the Rules of Professional Conduct.
An attorney was informally admonished for failing to provide competent representation; failing to obey the rules of
a tribunal; seeking to influence a juror or other official by
means prohibited by law; violating the special responsibilities
of a prosecutor; and engaging in conduct prejudicial to the
administration of justice in violation of Rules 16-101, 16-304
(C), 16-305(A); 16-308; and 16-804(D) of the Rules of Professional Conduct.
10
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
An attorney was informally admonished following a period
of probation for failing to keep the client reasonably informed
about the status of a matter in violation of Rules 16-104(A)(3)
of the Rules of Professional Conduct.
Letters of Caution
Total number of attorneys cautioned......................................... 11
Attorneys were cautioned for the following conduct: (1) general
incompetence (four letters of caution issued); (2) improper
withdrawal; (3) general misrepresentation to a client (two
letters of caution issued); (4) harassment; (5) bank overdraft;
(6) failure to communicate; and (7) conflict of interest.
Complaints Received
Allegations
No. of Complaints
Trust Account Violations....................................................... 2
Conflict of Interest.................................................................. 0
Neglect and/or Incompetence............................................. 82
Misrepresentation or Fraud................................................. 19
Relationship with Client or Court...................................... 17
Fees............................................................................................ 9
Improper Communications................................................... 2
Criminal Activity.................................................................... 0
Personal Behavior................................................................. 18
Other......................................................................................... 6
Total number of complaints received............................... 155
Legal Education
www.nmbar.org
February
4
Buying & Selling Partnership/LLC
Interest- Economic, Management &
Tax Issues
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
5
Ethics, Email and Law Practice
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Warrants, Options & Other
Incentives in Business Transactions
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
9
10
25th Annual Appellate Practice
Institute (2014)
5.7 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
102014 Fall Elder Law Institute
The Complexities of the Special
Needs Trust: Drafting, Funding and
Implementation
4.5 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
Civil Procedure Update and Recent
Developments in the U.S. Supreme
Court (2014)
3.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
Law Practice Succession—A Little
Thought Now, a Lot Less Panic
Later (2014)
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10–11 Ethics Update, Parts 1–2
2.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
12
Estate & Trust Planning for
Educational Expenses
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
13
Management Agreements in Real
Estate
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
16
2015 Nonprofit/Exempt
Organization Update
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
17
25th Annual Real Property Institute
(2014)
5.5 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Technology in the Courts (2014)
17
5.2 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
17
‘Technethics’: Ethical Issues in
Social Media and Other New
Technologies (2014)
3.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
17
Supreme Court Case Update and
New Rules Process (2014)
2.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
17–18 Drafting C and S Corp Stockholder
Agreements, Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Duress & Undue Influence in Estate
& Trust Planning
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
19
20
The Ethics of Billing & Collecting
Attorneys’ Fees
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
20
Representing Victims of Violence at
Order of Protection Hearings
2.0 G
Albuquerque
Volunteer Attorney Program
502-797-6040
[email protected]
24
Drafting Independent Contractor
Agreements
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
11
Legal Education
www.nmbar.org
March
3
Estate Planning for Farms and
Ranches
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
Reviewing and Drafting IT
Agreements
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Mock Meeting of the Ethics
Advisory Committee (2014)
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
5
Spotting & Preventing Fraud in
Real Estate Transactions
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
12
Ethical Issues When Representing
the Elderly
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24-25 Sub-leasing & Assignments,
Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
Oil and Gas: From the Basics to an
In-Depth Study (2014)
6.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
17-18 Fundamentals of Securities Law,
Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
10
23
Ethics for Transactional Lawyers
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
2014 Employment and Labor Law
Institute
4.5 G, 1.5 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
New Mexico Constitution—Current
Issues (2014)
2.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
Don’t Call Saul: ‘Breaking Bad’
Ethics (2014 Annual Meeting)
1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
Ethics and Professionalism: Advice
from the Bench and Bar (2014)
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
12
24
Internet Investigative/Legal
Research on a Budget and Legal
Tech Tips (2014)
6.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24
Fire in the Hole: What’s Exploding
in New Mexico Mining Law (2014)
5.5 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
2014 Intellectual Property Law
Institute
5.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
How to Become a Rock Star Lawyer,
the Ethical Way (2014)
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24
Medical Malpractice Review Before
the New Mexico Medical Review
Commission (2014)
2.0 G, 3.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
24
31
Nonprofit Corporations
Compliance (2014)
3.5 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
VAWA 2013 and Tribal Jurisdiction
Over Crimes of Domestic Violence
(2014)
3.2 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Exempt v. Non-exempt: Overtime
& Employer Liability in the
Workplace
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective January 23, 2015
Petitions for Writ of Certiorari Filed and Pending:
No. 35,095
No. 35,094
No. 35,093
No. 35,092
No. 35,089
No. 35,090
No. 35,084
No. 35,088
No. 35,083
No. 35,082
No. 35,086
No. 35,080
No. 35,085
No. 35,079
No. 35,076
No. 35,073
No. 35,070
No. 35,069
No. 35,077
No. 35,066
No. 34,995
No. 35,065
No. 35,064
No. 35,063
No. 35,060
No. 35,050
No. 35,035
No. 35,046
No. 35,040
No. 35,039
No. 35,037
No. 35,029
No. 35,016
No. 35,011
No. 35,010
No. 35,005
No. 35,068
No. 34,974
No. 34,949
No. 34,937
No. 34,932
No. 34,928
No. 34,881
Date Petition Filed
State v. Romero
COA 34,162 01/23/15
State v. Venegas-Diaz
COA 33,106 01/23/15
State v. Lujan
COA 33,995 01/23/15
State v. Sandoval
COA 33,952 01/22/15
State v. Demory
COA 33,659 01/21/15
State v. Upchurch
COA 33,240 01/20/15
Branch v. State
12-501 01/16/15
Vine v. State
12-501 01/15/15
Partida v.
Motor Vehicle Division COA 33,698 01/15/15
State v. Williams
COA 33,869 01/15/15
Moreno v. Hatch
12-501 01/13/15
State v. Barela
COA 34,034 01/13/15
Strand v. Janecka
12-501 01/12/15
State v. McKnight
COA 33,872 01/12/15
Begay v. Consumer Direct COA 33,288 01/09/15
State v. Butler
COA 33,696 01/09/15
State v. Acosta
12-501 01/08/15
Arencon v.
COA 33,196 01/08/15
City of Albuquerque
State v. Montoya
COA 33,975 01/06/15
State v. Garcia
COA 33,930 01/05/15
State v. Deangelo M.
COA 31,413 01/05/15
State v. Schaublin
COA 32,929 01/02/15
State v. Martin
COA 34,045 01/02/15
State v. Carroll
COA 32,909 12/30/14
Medina v. State
12-501 12/30/14
State v.
COA 32,110/32,109 12/22/14
Hernandez
Response ordered; due 2/2/15
State v. Stephenson
COA 31,273 12/18/14
Ramirez v. Ortiz
12-501 12/15/14
Montoya v. Wrigley
12-501 12/15/14
Ramirez v. Hatch
12-501 12/15/14
Graham v. Hatch
12-501 12/15/14
State v. Abeyta
COA 33,485 12/12/14
State v. Baca
COA 33,626 12/03/14
Segura v. Franco
12-501 12/03/14
Chavez v. State
12-501 12/03/14
State v. Archuleta
COA 32,794 11/26/14
Jessen v. Franco
12-501 11/25/14
Moses v. Skandera
COA 33,002 11/12/14
Responses filed 12/1/14
State v. Chacon
COA 33,748 10/27/14
Response filed 10/31/14
Pittman v.
12-501 10/20/14
N.M. Corrections Dept.
Gonzales v. Sanchez
12-501 10/16/14
State v. Luevano
COA 31,741 10/14/14
Response ordered; due 1/26/15
Paz v. Horton
12-501 10/08/14
No. 34,913
No. 34,907
No. 34,885
No. 34,878
No. 34,777
No. 34,790
No. 34,765
No. 34,793
No. 34,775
No. 34,776
No. 34,748
No. 34,731
No. 34,739
No. 34,706
No. 34,691
No. 34,589
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Finnell v. Horton
12-501
Cantone v. Franco
12-501
Savage v. State
12-501
O’Neill v. Bravo
12-501
State v. Dorais
COA 32,235
Response filed 7/31/14
Venie v. Velasquz
COA 33,427
Response ordered; due 8/22/14
Helfferich v. Frawner
12-501
Response ordered; due 2/2/15
Isbert v. Nance
12-501
State v. Merhege
COA 32,461
Serna v. Franco
12-501
Smith v. State
12-501
Helfferich v. Frawner
12-501
Response ordered; due 2/2/15
Holguin v. Franco
12-501
Camacho v. Sanchez
12-501
Wetson v. Nance
12-501
Response ordered; filed 7/14/14
Seager v. State
12-501
Benavidez v. State
12-501
Response ordered; filed 5/28/14
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Response ordered; filed 1/22/13
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Response ordered; due 10/24/12
Utley v. State
12-501
09/22/14
09/11/14
09/08/14
08/26/14
07/02/14
06/27/14
06/24/14
06/23/14
06/19/14
06/13/14
06/06/14
05/29/14
05/21/14
05/13/14
05/07/14
04/23/14
02/25/14
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Certiorari Granted but not yet Submitted to the Court:
(Parties preparing briefs) Date Writ Issued
No. 33,725 State v. Pasillas
COA 31,513 09/14/12
No. 33,837 State v. Trujillo
COA 30,563 11/02/12
No. 33,877 State v. Alvarez
COA 31,987 12/06/12
No. 33,930 State v. Rodriguez
COA 30,938 01/18/13
No. 33,994 Gonzales v. Williams
COA 32,274 08/30/13
No. 33,863 Murillo v. State
12-501 08/30/13
No. 33,810 Gonzales v. Marcantel
12-501 08/30/13
No. 34,363 Pielhau v. State Farm
COA 31,899 11/15/13
No. 34,274 State v. Nolen
12-501 11/20/13
No. 34,400 State v. Armijo
COA 32,139 12/20/13
No. 34,443 Aragon v. State
12-501 02/14/14
No. 34,549 State v. Nichols
COA 30,783 03/28/14
No. 34,522 Hobson v. Hatch
12-501 03/28/14
COA 32,862 04/11/14
No. 34,582 State v. Sanchez
No. 34,637 State v. Serros
COA 31,975 05/01/14
No. 34,694 State v. Salazar
COA 33,232 06/06/14
No. 34,669 Hart v. Otero County Prison 12-501 06/06/14
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
13
Writs of Certiorari
No. 34,650
No. 34,630
No. 34,789
No. 34,769
No. 34,786
No. 34,784
No. 34,805
No. 34,798
No. 34,843
No. 34,834
No. 34,772
No. 34,726
No. 34,668
No. 34,855
No. 34,728
No. 34,812
No. 34,886
No. 34,866
No. 34,854
No. 34,830
No. 34,826
No. 34,997
No. 34,993
No. 34,978
No. 34,946
No. 34,945
No. 34,940
No. 34,929
Scott v. Morales
COA 32,475
State v. Ochoa
COA 31,243
Tran v. Bennett
COA 32,677
State v. Baca
COA 32,553
State v. Baca
COA 32,523
Silva v. Lovelace Health
Systems, Inc.
COA 31,723
King v.
Behavioral Home Care
COA 31,682
State v. Maestas
COA 31,666
State v. Lovato
COA 32,361
SF Pacific Trust v.
City of Albuquerque
COA 30,930
City of Eunice v. N.M. Taxation
and Revenue Dept.
COA 32,955
Deutsche Bank v.
Johnston
COA 31,503
State v. Vigil
COA 32,166
Rayos v. State
COA 32,911
Martinez v. Bravo
12-501
Ruiz v. Stewart
12-501
State v. Sabeerin COA 31,412/31,895
State v. Yazzie
COA 32,476
State v. Alex S.
COA 32,836
State v. Mier
COA 33,493
State v. Trammel
COA 31,097
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
Atherton v. Gopin
COA 32,028
State v. Kuykendall
COA 32,612
State v. Kuykendall
COA 32,612
State v. Flores
COA 32,709
Freeman v. Love
COA 32,542
06/06/14
06/06/14
08/01/14
08/01/14
08/01/14
08/01/14
08/15/14
08/15/14
08/29/14
08/29/14
08/29/14
08/29/14
09/26/14
10/10/14
10/10/14
10/10/14
10/24/14
10/24/14
10/24/14
10/24/14
10/24/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 33,548 State v. Marquez
COA 30,565 04/15/13
No. 33,808 State v. Nanco
COA 30,788 08/14/13
No. 33,862 State v. Gerardo P.
COA 31,250 08/14/13
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing COA 30,196 08/28/13
No. 33,898 Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088 09/11/13
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 10/28/13
14
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
No. 34,013
No. 34,085
No. 34,146
Foy v. Austin Capital
COA 31,421
Badilla v. Walmart
COA 31,162
Madrid v.
Brinker Restaurant
COA 31,244
COA 30,546
No. 34,093 Cordova v. Cline
No. 34,194/34,204
COA 34,116/31,446
King v. Faber
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297
No. 34,120 State v. Baca
COA 31,442
No. 34,122 State v. Steven B. consol. w/
State v. Begaye
COA 31,265/32,136
No. 34,286 Yedidag v.
Roswell Clinic Corp.
COA 31,653
No. 34,499 Perez v. N.M. Workforce
Solutions Dept. COA 32,321/32,330
No. 34,546 NM Dept. Workforce Solutions v.
Garduno
COA 32,026
COA 30,917
No. 34,271 State v. Silvas
No. 34,435 State v. Strauch
COA 32,425
COA 32,405
No. 34,447 Loya v. Gutierrez
No. 34,295 Dominguez v. State
12-501
COA 32,335
No. 34,501 Snow v. Warren Power
No. 34,607 Lucero v.
Northland Insurance
COA 32,426
No. 34,554 Miller v.
Bank of America
COA 31,463
No. 34,516 State v. Sanchez
COA 32,994
No. 34,613 Ramirez v. State
COA 31,820
No. 34,476 State v. Pfauntsch
COA 31,674
No. 34,764 State v. Slade
COA 32,681
No. 34,548 State v. Davis
COA 28,219
No. 34,526 State v. Paananen
COA 31,982
11/14/13
12/04/13
12/09/13
01/15/14
02/24/14
03/26/14
03/26/14
08/11/14
08/11/14
08/13/14
08/13/14
08/25/14
08/27/14
08/27/14
09/24/14
10/01/14
10/29/14
11/10/14
12/17/14
12/17/14
12/17/14
01/12/15
01/14/15
01/14/15
Petition for Writ of Certiorari Denied:
No. 35,062
No. 35,061
No. 35,059
No. 35,058
No. 35,057
No. 35,056
No. 35,054
No. 35,038
No. 34,796
State v. Eduardo L.
State v. Martinez
State v. Larranaga
State v. Truong
State v. Williams
State v. Elebario
State v. Saienni
State v. Garnenez
Miller v. Ortiz
Date Order Filed
COA 33,620 01/23/15
COA 33,809 01/23/15
COA 33,629 01/23/15
COA 33,873 01/23/15
COA 33,863 01/23/15
COA 33,874 01/23/15
COA 33,013 01/23/15
COA 34,120 01/23/15
12-501 01/23/15
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Effective January 23, 2014
Published Opinions
No. 32171 2nd Jud Dist Bernalillo CV-02-9124, PROGRESSIVE v N VIGIL 01/21/2015
(affirm in part, reverse in part and remand)
No. 32708 9th Jud Dist Curry CR-10-610, STATE v G MURILLO (affirm)
01/21/2015
Unublished Opinions
No. 33976 2nd Jud Dist Bernalillo LR-12-48, STATE v B DIMAS (affirm)
01/21/2015
No. 34041 2nd Jud Dist Bernalillo CV-10-5909, BANK OF NY v N SINGH (affirm)
01/21/2015
No. 34066 5th Jud Dist Lea DM-12-86, J SHANER v C SHANER (affirm)
01/21/2015
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
15
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Clerk’s Certificate of
Withdrawal
Clerk’s Certificate of
Admission
Effective January 1, 2015:
Barbara Ann Brill
932 Los Lovatos Road
Santa Fe, NM 87501
On January 9, 2015:
Herbert M. Strassberg
Law Offices of the Public
Defender
PO Box 1317
Hobbs, NM 88241-1317
575-263-2740
575-393-5803 (fax)
Effective December 31, 2014:
Ronald Merritt Higginbotham
PO Box 1103
Roswell, NM 88202-1103
Effective January 13, 2015:
Eudora Shaw
249 Gillingham Drive
Newbury, NH 03255
Effective December 31, 2014:
Scott Zesch
PO Box 67
Art, TX 76820-0067
In Memoriam
As of September 7, 2014:
Howell Cobb III
PO Box 4915
Beaumont, TX 77704-4915
Clerk’s Certificate
of Reinstatement to
Active Status
As of January 12, 2015:
William Joseph Moon
2800 Plaza Amarilla
Santa Fe, NM 87507
505-629-9662
As of January 16, 2015:
Marilyn S. Hebert
42 Wildflower Way
Santa Fe, NM 87506
505-986-1944
16
Clerk’s Certificate
of Change to
Inactive Status
Effective December 30, 2014:
Paul Adams
The Adams Law Firm, PC
3800 Osuna Road NE, Suite 2
Albuquerque, NM 87109
Terri S. Beach
8508 Palomar Avenue NE
Albuquerque, NM 87109
Brenna Joy Miller
U.S. Navy
24505 Peachland Avenue
Newhall, CA 91321
Effective January 6, 2015:
Jennifer Rebecca Albright
Arizona Supreme Court
2048 E. La Jolla Drive
Tempe, AZ 85282
Elmer Joseph Lincoln Jr.
7625 N. Viale Di Buona
Fortuna
Tucson, AZ 85718
Effective December 23, 2014:
Orlando J. Gonzalez
1632 Columbia Drive SE
Albuquerque, NM 87106
Jan Schoenhaus
2430 Northwest Circle NW
Albuquerque, NM 87104
Effective January 9, 2015:
Regina M. Hurley
5400 Montgomery Blvd. NE,
Suite 609-B
Albuquerque, NM 87109
Effective January 1, 2015:
Rebecca Loubriel Avitia
National Hispanic Cultural
Center
1701 Fourth Street SW
Albuquerque, NM 87102
Diana J. Harris
PO Box 22101
Santa Fe, NM 87502-2101
Paul E. Houston
7421 Gila Road NE
Albuquerque, NM 87109
Bruce Robert Kohl
201 Camino del Norte
Santa Fe, NM 87501
Scott N. Oliver
Myers, Oliver & Price, PC
1401 Central Avenue NW
Albuquerque, NM 87104
Katherine R. Sutton
9913 Denali Road NE
Albuquerque, NM 87111
Nan E. Burke
1404 Lafayette Drive NE
Albuquerque, NM 87106
Effective December 29, 2014:
James B. Alley Jr.
PO Box 1932
Santa Fe, NM 87504-1932
Byron L. Treaster
PO Box 659
Tesuque, NM 87574-0659
Effective January 1, 2015:
Steven Kyle Armstrong
U.S. Department of Justice
700 E. San Antonio, Suite 200
El Paso, TX 79901
Effective December 22, 2014:
Stephanie A. Erickson
914 N. Thomas Street
Carlsbad, NM 88220
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
Effective December 20, 2014:
Joe Cruz Castellano Jr.
PO Box 8243
Albuquerque, NM 87504
Effective December 31, 2014:
Walter Merrill Lowney
Lowney Law Firm
10320 Cottonwood Park NW,
Suite E
Albuquerque, NM 87114
Polly Ann Tausch
Fitch & Tausch, LLC
PO Box 1647
911 Belmont
Socorro, NM 87801-1647
Rebecca Elizabeth Wardlaw
Rebecca E. Wardlaw, PC
PO Box 8382
Albuquerque, NM 87198-8382
Effective December 2, 2014:
Scott L. Mullins
Oregon Division of Finance
and Corporate Securities
350 Winter Street NE
Salem, OR 97301
Effective December 26, 2014:
Melinda Gubec Politeo
108 E. Sunrise Drive
Santa Fe, NM 87506
Effective December 24, 2014:
David Carlson Smith
David Carlson Smith, PC
215 Lincoln Avenue, Suite 201
Albuquerque, NM 87501
Effective December 24, 2014:
Nancy Qi Su
Resurgence Legal Group, PC
15534 Caulfield Avenue
Norwalk, CA 90650
Clerk’s Certificates
Dated Jan. 26, 2015
Clerk’s Certificate
of Address and/or
Telephone Changes
Jennifer M. Anderson
Colorado Attorney General’s
Office
1300 Broadway, 10th Floor
Denver, CO 80203
720-508-6555
[email protected]
Naomi Bebo
15 Abanico Road
Santa Fe, NM 87508
505-553-1177
[email protected]
Shelby Lynne Carlson
Adkerson, Hauder
& Bezney, PC
1700 Pacific Avenue, Suite 4450
Dallas, TX 75201
214-740-2500
[email protected]
Cristina Chavez
Mary Ann Romero
& Associates
301 Edith Blvd. NE, Suite 100
Albuquerque, NM 87102
505-796-2024
505-247-1502 (fax)
[email protected]
Kirk C. Chavez
The Sawyers Law Group
1601 N. Turner Street, Suite 400
Hobbs, NM 88240
575-393-1300
575-393-1869 (fax)
[email protected]
Robert Erickson
Phillips Haffey, PC
PO Box 8569
283 W. Front Street,
Suite 301 (59802)
Missoula, MT 59807-8569
406-721-7880
406-721-0058 (fax)
rerickson@phillipsmontana.
com
Stanley Allen Giles Jr.
Giles & Associates
1804 Lomas Blvd. NW
Albuquerque, NM 87104
505-247-1234 (phone and fax)
[email protected]
Michael E. Hendricks
Beacon Immigration
820 Second Street NW
Albuquerque, NM 87102
505-985-5544
michael@beaconimmigration.
com
Charles Bernard Kraft
Law Offices of the Public
Defender
505 Marquette Avenue NW,
Suite 120
Albuquerque, NM 87102
505-835-2238
505-796-4661 (fax)
[email protected]
Stephanie M. Krueger
Thompson Coe Cousins
& Irons, LLP
One Riverway, Suite 1400
Houston, TX 77056
713-403-8207
713-403-8299 (fax)
[email protected]
Amy Landau
PO Box 10440
Albuquerque, NM 87184-0440
505-341-0027
[email protected]
Ann-Renee Mascareñas
Jay Goodman & Associates
2019 Galisteo Street, Suite C-3
Santa Fe, NM 87505
505-989-8117
[email protected]
Madeline E. Melka
200 Carolino Canyon Road
Tijeras, NM 87059
505-281-0575
[email protected]
Peter B. Miller
Crowell & Moring LLP
1001 Pennsylvania Avenue NW
Washington, DC 20004
202-624-2506
202-628-5116 (fax)
[email protected]
Makyla M. Moody
Greenberg & Sada, PC
770 W. Hampden Avenue,
Suite 227
Englewood, CO 80110
303-781-3529
303-783-2222 (fax)
[email protected]
Sarita Nair
Office of the State Auditor
2540 Camino Edward Ortiz,
Suite A
Santa Fe, NM 87507
505-476-3800
505-827-3512 (fax)
[email protected]
Elise F. Oviedo
National Labor Relations
Board
600 Las Vegas Blvd. South,
Suite 400
Las Vegas, NV 89101
702-388-6416
702-388-6248 (fax)
[email protected]
Sheri A. Raphaelson
512 S. Riverside Drive
Espanola, NM 87532
505-927-3185
[email protected]
Michael C. Ross
111 Isleta Blvd. SW, Suite A
Albuquerque, NM 87105
505-242-4669
505-212-0411 (fax)
[email protected]
Christopher J. Schultz
12308 Lexington Avenue NE
Albuquerque, NM 87112
505-323-0615
[email protected]
Jamye Boone Ward
PO Box 920838
El Paso, TX 79902-0015
915-539-3029
[email protected]
Lauren L. Zabicki
Law Firm of
David C. Chavez, LLC
PO Box 1615
Los Lunas, NM 87031-1615
505-865-9696
[email protected]
Frank A. Baca Jr.
7601 Jefferson Street NE,
Suite 380
Albuquerque, NM 87109
505-400-5588
[email protected]
Mary Lynn Bogle
Hinkle Shanor LLP
PO Box 1720
119 S. Roselawn Ave.,
Suite 306 (88210)
Artesia, NM 88211-1720
575-622-6510
575-746-6316 (fax)
[email protected]
Thomas R. Figart
PO Box 683
845 N. Motel Blvd. (88007)
Las Cruces, NM 88004-0683
[email protected]
Nicholas Martin McDonnell
7012 Welton Drive NE
Albuquerque, NM 87109
nickmcdonnell7215@gmail.
com
Lauren A. Shapiro
Lauren Shapiro Law, PLLC
2721 Kinney Oaks Court
Austin, TX 78704
512-656-1116
lshapiro@laurenshapirolaw.
com
E. Ann Strahan
Strahan & Smalls
138 W. Mountain Avenue
Las Cruces, NM 88005
575-523-9052
575-523-9055 (fax)
[email protected]
Jeffrey B. Schamis
525 Tony Street
Santa Fe, NM 87501
[email protected]
Susan J. Carter
Weinstein & Riley, PS
20 First Plaza NW, Suite 303
Albuquerque, NM 87102
206-438-1039
505-214-5116 (fax)
[email protected]
Laurie A. Gallegos
The Trinity Law Firm
557 Oppenheimer Drive,
Suite 101
Los Alamos, NM 87544
505-662-8955
888-894-2221 (fax)
[email protected]
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
17
Clerk’s Certificates
Clerk’s Certificate of
Withdrawal
Effective January 11, 2015:
David Steven Dales
216 Dolphin Estates Court
Destin, FL 32541
Effective January 9, 2015:
Nancy L. Fleming
PO Box 1943
Las Cruces, NM 88004-1943
Effective January 1, 2015:
George Gary Duncan
506 Galisteo Street
Santa Fe, NM 87501
Effective December 27, 2014:
Torrence B. Harrison
8116 Rancho Lindo Court NW
Albuquerque, NM 87120
Effective January 6, 2015:
Gail K. Jensen
7315 Willow Avenue
Takoma Park, MD 20912
Sharon Salazar Hickey
Los Alamos National
Laboratory
PO Box 1663, MS A147
Los Alamos, NM 87545
Effective January 8, 2015:
Tamiel S. Holloway
4130 Degnan Blvd.
Los Angeles, CA 90008
Clerk’s Certificate
of Change to Inactive
Status
Thomas J. Hynes Jr.
5508 Lola Lane
Farmington, NM 87402
Effective January 26, 2015:
Heather S. Jaramillo
The Jaramillo Firm, LLC
1110 Second Street NW
Albuquerque, NM 87102-1952
505-792-4048
505-792-2268
[email protected]
Jonathan H. Reischl
234 Jackson Street
Trenton, NJ 08611
Effective January 16, 2015:
Hon. Stephen Bridgforth
2063 Cortabella
Las Cruces, NM 88005
Clerk’s Certificate of
Withdrawal
18
Brett A. Schneider
205 Park Central East, Suite 417
Springfield, MO 65806
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
Effective January 6, 2015:
Jessica Ann Janet
19223 Hollow Lane
Redding, CA 96003
Effective January 12, 2015:
Kimberly A. Middlebrooks
PO Box 10436
4811 Hardware Drive NE,
Bldg. 05 (87109)
Albuquerque, NM 87184-0436
Effective January 12, 2015:
Rebekah Grace Newman
PO Box 3509
100 West Colorado Ave.,
Suite 215-216
Telluride, Co 81435
Effective January 6, 2015:
Mia A. Rubin
West Law Firm, PLLC
40 First Plaza NW, Suite 735
Albuquerque, NM 87102
Effective January 16, 2015:
Flynn Evelyn Sylvest
Aspiranet
2838 Eastman Avenue,
Suite 100
Ventura, CA 93003
In Memoriam
As of January 9, 2015:
Hon. Gerard W. Thomson
131 M Street NE
Washington, DC 20002
Recent Rule-Making Activity
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective February 4, 2015
Pending Proposed Rule Changes Open for
Comment:
Comment Deadline
For 2014 year-end rule amendments that became effective December
31, 2014, please see the November 5, 2014, issue of the Bar Bulletin
or visit the New Mexico Compilation Commission’s website at http://
www.nmcompcomm.us/nmrules/NMRuleSets.aspx.
Recently Approved Rule Changes
Since Release of 2014 NMRA:
Effective Date
Children’s Court Rules and Forms
10-102
10-315
10-317
10-323
10-343
10-501A
10-565
10-566
10-567
Commencement of action. 08/31/14
Custody hearing.
07/01/14
Notice of change in placement. 08/31/14
Dismissal of a respondent or child;
08/31/14
party dismissal sheet. Adjudicatory hearing; time limits;
continuances.07/01/14
Abuse and neglect party information sheet. 08/31/14
Advance notice of change of placement.
08/31/14
Emergency notice of change of placement. 08/31/14
Abuse and neglect party dismissal sheet.
08/31/14
Rules of Appellate Procedure
12-206A Expedited appeals from Children’s Court
custody hearings.
12-303 Appointment of counsel.
07/01/14
07/01/14
Rules Governing Admission to the Bar
15-102 Admission requirements.
15-103Qualifications.
15-105 Application fees.
15-107 Admission by motion.
06/01/15
06/01/15
06/01/15
06/01/15
Supreme Court General Rules
23-109
Chief judges.
04/23/14
To view all pending proposed rule changes (comment period open or closed),
visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website
at http://www.nmcompcomm.us.
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
19
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
From the New Mexico Supreme Court
Opinion Number: 2014-NMSC-039
STATE OF NEW MEXICO,
Plaintiff-Petitioner,
v.
SARA GONZALES,
Defendant-Respondent
No. 33,376 (filed April 15, 2013)
ORIGINAL PROCEEDING ON CERTIORARI
NEIL C. CANDELARIA, District Judge
GARY K. KING
Attorney General
MARGARET E. MCLEAN
Assistant Attorney General
Santa Fe, New Mexico
for Petitioner
Opinion
Barbara J. Vigil, Justice
{1}We granted certiorari to review the
Court of Appeals’ opinion in this case. After reviewing the record, the parties’ briefs,
and hearing oral argument, we issued
an order quashing the writ of certiorari.
However, we find the procedural history
of this case and a related case troubling
and are compelled to write a decision to
explain why we quashed certiorari and to
caution appellate practitioners that adverse
consequences can result when the Rules of
Appellate Procedure are not followed.
{2}In this case and a related case, the
Second Judicial District Attorney’s Office
(“District Attorney”) violated Rule 12-208
NMRA, which addresses the requirements
for docketing an appeal. The violation ultimately wasted the time of the appellate
courts and the parties and, perhaps most
troubling, precipitated the issuance of
contradictory opinions by the Court of Appeals on related appeals not only involving
the identical issue, but involving the same
ruling by the same judge regarding the legal
sufficiency of the same search warrant.
{3} We require that all appellate practitioners comply with the Rules of Appellate
Procedure so that unnecessary procedural
conflicts do not arise that prevent the effective and efficient administration of justice.
In order to fully grasp the impact of this
20
JOHN A. MCCALL
LAW WORKS, LLC
Albuquerque, New Mexico
for Respondent
rule violation, a brief background of this
case and the related case is necessary.
I.FACTUAL AND PROCEDURAL
BACKGROUND
{4}On March 5, 2009, the State filed indictments in the Second Judicial District
Court against Raymundo Maso (“Maso”)
and Sara Gonzales (“Gonzales”), charging each with drug related offenses after
a search warrant authorizing a search of
their shared apartment revealed incriminating evidence against them. The State
filed a Statement of Joinder and the cases
were joined. Maso filed a motion to suppress the evidence, which Gonzales joined.
On August 14, 2009, the district court issued an order granting the suppression of
evidence motion, concluding the search
warrant was invalid because it “did not
include sufficient specific facts to establish
probable cause for the issuance of a search
warrant” under either the United States or
New Mexico Constitution.
{5}On August 21, 2009, the State then
separately appealed this suppression order
to the New Mexico Court of Appeals for
each defendant. The Court of Appeals
decided the appeal involving Maso on
its summary calendar, and in a memorandum opinion by Judge Wechsler, the
Court reversed the suppression order and
remanded to the district court for further
proceedings. See State v. Maso, No. 29,842,
slip op. (N.M. Ct. App. April 14, 2010)
(non-precedential), cert. denied, S. Ct. No.
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
32,398 (August 25, 2010). Maso petitioned
for a writ of certiorari, which this Court
denied on August 25, 2010. Conversely,
the State’s appeal in this case was assigned
to the Court of Appeals’ general calendar,
and in a memorandum opinion by Judge
Kennedy, the Court affirmed the same
suppression order, with Judge Garcia
concurring and Judge Wechsler dissenting. See State v. Gonzales, No. 29,843, slip
op. (N.M. Ct. App. December 9, 2011)
(non-precedential), cert. granted, S. Ct.
No. 33,376 (February 16, 2012). The State
successfully petitioned this Court for a
writ of certiorari in this case, primarily
on the ground that the Court of Appeals
had issued diametrically opposite rulings
upholding the search warrant in Maso and
holding it unlawful in this case.
{6} We ultimately agreed with the reasoning and conclusion of the Court of Appeals
in this case and, therefore, quashed the
writ of certiorari. Although the quashing of our writ in this case may appear to
leave a decision in place that would allow
Maso to be prosecuted with evidence that
was suppressed as to Gonzales – despite
no appreciable difference in their situations – we hasten to add that after the
Court of Appeals issued Gonzales, the
State dismissed the charges against both
Gonzales and Maso, even though it could
have proceeded in its case against Maso.
As such, any continuing concern about
the inconsistent application of the law for
these two co-defendants has been alleviated. Nonetheless, we are concerned by the
fact that the Attorney General was apparently unaware that the District Attorney
had filed a nolle prosequi in this case, as it
did not disclose to this Court–either in its
petition for writ of certiorari, its briefs or
in its oral argument–that a nolle prosequi
had been filed in this case. Although this
nolle prosequi does not strip this Court of
its jurisdiction, it is nonetheless essential
information regarding the procedural
history of this case since it stripped the
district court of its jurisdiction in this case.
However, while it is important that this
Court be made aware of essential pieces
of information such as this, the Discussion in this Decision focuses on the more
serious rule violation the District Attorney
committed in these cases and explains the
impact of the violation.
II.DISCUSSION
{7} The inconsistent Court of Appeals
memorandum opinions at issue stemmed
Advance Opinions
from the District Attorney’s failure to
comply with Rule 12-208, which addresses
the requirements for docketing an appeal.
Specifically, Paragraph D of Rule 12-208
dictates that “[a] docketing statement shall
contain . . . a reference to all related or
prior appeals.” Rule 12-208(D)(7). However, the District Attorney filed Gonzales
and Maso in the Court of Appeals on the
same day within one minute of each other
without any reference in either docketing
statement alerting the Court of Appeals
that the appeals were related. In fact, both
docketing statements specifically include
the statement, “There are no related or
prior appeals.”
{8}As a consequence, the Court of Appeals was not informed in a timely manner that it had two related appeals raising
the same issue resulting from the same
suppression ruling. In fact, when the Attorney General’s Office finally notified the
Court of Appeals that it was responsible
for related cases, it was too late to join
them, as the Court had already issued its
memorandum opinion in Maso. Thus,
the only way to avoid the issuance of a
contradictory opinion at that point was if
the second panel, after hearing different
arguments made by a different defendant,
agreed with the reasoning and conclusion
of the first panel regarding whether to
uphold the suppression order, which it
obviously did not. We recognize that by
the time the Court of Appeals issued its
opinion in Gonzales it was well aware of
its contrary decision in Maso. Nonetheless,
the dilemma was created by the failings of
the District Attorney, and we do not fault
the Court of Appeals for taking a different
approach after considering the additional
arguments raised by a new defendant
and concluding that a different result was
warranted. The conflict in the Court of
Appeals’ memorandum opinions was a
matter for this Court to address when it
granted certiorari.
http://www.nmcompcomm.us/
{9}But we cannot emphasize enough
that if the District Attorney had complied
with Rule 12-208(D)(7), the cases could
have been joined in the Court of Appeals,
foreclosing the possibility of an inconsistent result for each defendant and saving a
great deal of time for all concerned. Proper
disclosure by the District Attorney of the
related appeals in the docketing statements
would have alerted the Court of Appeals,
early on, of the need to assign the cases to
the same calendar and would have likely
eliminated the confusion that resulted
from the assignment of the related cases
to different calendars.
{10} Likewise, by notifying the Court
of Appeals of the related appeals in the
docketing statements, the cases could have
been assigned to one panel. If the cases had
been heard and decided together, a single
panel could have resolved any conflicting
views about how to apply the law in a single
memorandum opinion with the benefit of
the arguments from all parties at one time.
At the very least, the Court of Appeals
could have delayed a decision in Maso
until the Court could hear the appeal in
Gonzales. But due to the District Attorney’s
failure to comply with Rule 12-208(D)(7),
procedural confusion resulted in the issuance of inconsistent opinions by the Court
of Appeals.
{11} We were then faced with having to
address the contradictory Court of Appeals opinions. The State suggests that
the conflict could be resolved simply by
reversing Gonzales. However, as noted
above, we agree with the Court of Appeals’
reasoning and conclusion in Gonzales and
disagree with the State’s assertion that the
second Court of Appeals panel was bound
to decide Gonzales as the first panel decided Maso. Thus, after a thorough review
of the procedural quagmire and careful
consideration of the basis for the Gonzales
opinion issued by the Court of Appeals,
we decided that the writ of certiorari was
improvidently issued in this case and
should be quashed. However, we remain
deeply concerned by the fact that the State’s
fundamental basis for this appeal was the
inconsistent rulings by the Court of Appeals, which would not have occurred had
the District Attorney complied with Rule
12-208(D)(7).
{12} Rule 12-208 was enacted to eliminate the difficulty that occurred with the
inconsistent rulings in these related appeals. The situation that arose as a result
of the rule violation demonstrates that
each and every rule has a purpose and
consequences can be severe if mandatory rules are not followed. With that in
mind, this decision serves to remind all
appellate practitioners, and especially
district attorneys, of something each of
us already knows but that bears repeating.
We require that all lawyers docketing an
appeal comply with Rule 12-208 (and all
other Rules of Appellate Procedure for that
matter). Failure to do so is no small matter, which these related appeals so clearly
demonstrate.
III.CONCLUSION
{13} Because we ultimately considered
the legal analysis and conclusion of the
Court of Appeals with regard to the
Fourth Amendment search and seizure
issue raised in this appeal to be proper,
we quashed the writ of certiorari. We did
so amidst our serious concerns about the
procedural hornet’s nest and unwarranted
inconsistencies in opinions that would
have been easily avoided had the District
Attorney complied with the Rules of Appellate Procedure.
{14} IT IS SO ORDERED.
BARBARA J. VIGIL, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
21
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court
Opinion Number: 2014-NMSC-040
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
CHARLES SUSKIEWICH,
Defendant-Appellee
No. 34,187 (filed September 12, 2013)
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
JAMES A. HALL, District Judge
GARY K. KING
Attorney General
OLGA SERAFIMOVA
Assistant Attorney General
Santa Fe, New Mexico
for Appellant
Opinion
Edward L. Chávez, Justice
{1} The district court granted Defendant
Charles Suskiewich’s motion to suppress evidence. The State is permitted
by both statute and procedural rule to
appeal a district court order suppressing
evidence within ten days after the order
is filed. See NMSA 1978, § 39-3-3(B)
(2) (1972); Rule 12-201(A)(1) NMRA.
The State may also ask the district court
to reconsider its ruling. In this case, we
discuss the procedure for the State to
seek (1) a district court’s reconsideration of a suppression order while at the
same time preserving its right to appeal
the suppression order, and (2) whether
the State adhered to the statutory procedure in this case. We hold that the State
may ask the district court to reconsider
a suppression order while at the same
time preserving the State’s right to appeal
the suppression order, provided that the
State files its motion to reconsider within
ten days of the filing of the suppression
order. In this case, the State filed its
motion to reconsider after the ten-day
time period had expired, and therefore,
although the district court could still reconsider the suppression order, the State
failed to preserve its right to appeal. We
therefore dismiss the appeal as untimely
filed.
22
TODD A. COBERLY
COBERLY & ATTREP, L.L.L.P.
Santa Fe, New Mexico
JOHN W. DAY
EGOLF, FERLIC, & DAY, L.L.C.
Santa Fe, New Mexico
for Appellee
BACKGROUND
{2}On January 19, 2012, a grand jury
indicted Defendant on one count of firstdegree murder, one count of tampering
with evidence, and one count of receiving
stolen property. On July 27, 2012, Defendant filed a motion to suppress “(1) all
statements made by [Defendant] before he
was given warnings pursuant to Miranda v.
Arizona, 384 U.S. 436 (1966); (2) the physical evidence of a gun; and (3) the custodial
interrogation of [Defendant].” The district
court held an evidentiary hearing on Defendant’s motion and entered an order on
December 6, 2012, granting the motion.
{3}On January 4, 2013, the State filed a
motion asking the district court to reconsider the suppression order. On February
15, 2013, the case was reassigned to a new
judge, who denied the State’s motion to
reconsider on April 9, 2013, on the ground
that the State had failed to establish that
any of the prior judge’s rulings were clearly
erroneous or manifestly unjust.
{4} Nine business days later, on April 22,
2013, the State filed a notice of appeal to
the Court of Appeals “from the Order
Denying the State’s Motion to Reconsider.”
The appeal was transferred from the Court
of Appeals to this Court on June 5, 2013.
See State v. Smallwood, 2007-NMSC-005,
¶ 11, 141 N.M. 178, 152 P.3d 821 (concluding “that the legislature intended
for [this Court] to have jurisdiction over
interlocutory appeals in situations where
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
a defendant may possibly be sentenced
to life imprisonment or death”); see also
NMSA 1978, § 34-5-10 (1966) (“No matter
on appeal in the supreme court or the court
of appeals shall be dismissed for the reason
that it should have been docketed in the
other court, but it shall be transferred by
the court in which it is filed to the proper
court.”).
{5}On June 13, 2013, Defendant filed a
motion to dismiss the State’s appeal, arguing that the appeal was neither timely
nor authorized by Section 39-3-3. In response, the State asks this Court to deny
Defendant’s motion to dismiss because (1)
motions to reconsider should be encouraged in order to further judicial economy,
and (2) Defendant waived his objection to
the timeliness of the State’s appeal because
he failed to object in the district court
to the timing of the State’s motion for
reconsideration, which was filed outside
of the ten-day appeal period permitted by
Section 39-3-3(B)(2). In reply, Defendant
contends that this Court lacks jurisdiction to consider the merits of the State’s
untimely appeal.
DISCUSSION
{6}Defendant argues that the State’s
appeal should be dismissed because (1)
no statutory or constitutional provision
grants the State a right to appeal the district
court’s denial of a motion to reconsider,
and (2) even if the State’s appeal is construed as an appeal from the underlying
suppression order, the appeal is untimely.
We review de novo whether the State’s notice of appeal is effective and timely under
the statutes and procedural rules governing appeals from suppression orders. See
State v. Hall, 2013-NMSC-001, ¶ 9, 294
P.3d 1235 (“Interpretation of a statute is
an issue of law that we review de novo.”);
Grygorwicz v. Trujillo, 2009-NMSC-009, ¶
7, 145 N.M. 650, 203 P.3d 865 (“Determining whether Defendant’s appeal was timely
involves the interpretation of court rules,
which we review de novo.”).
{7} “Generally, the State cannot appeal
proceedings from a judgment in favor
of the defendant in a criminal case absent a constitutional provision or statute
conferring that right.” State v. Sanchez,
2008-NMSC-066, ¶ 7, 145 N.M. 311,
198 P.3d 337 (internal quotation marks
and citations omitted). Defendant argues
that the State’s appeal in this case must be
dismissed because the State has neither a
statutory right nor a constitutional right to
appeal from the district court’s denial of a
motion to reconsider. The State responds
Advance Opinions
that it has a right to appeal a district court
order suppressing evidence and asks this
Court to construe its appeal from the
motion to reconsider as an appeal from
the underlying suppression order. See §
39-3-3(B)(2); see also State v. Heinsen,
2005-NMSC-035, ¶ 12, 138 N.M. 441,
121 P.3d 1040 (noting that “an appeal of
a suppression order has been held to be a
statutory right, rather than a constitutional
right”).
{8} This Court has “stated [a] policy of
facilitating the right of appeal by liberally
construing technical deficiencies in a notice of appeal otherwise satisfying the time
and place of filing requirements.” Govich v.
N. Am. Sys., Inc., 1991-NMSC-061, ¶ 12,
112 N.M. 226, 814 P.2d 94; see also Wakeland v. N.M. Dep’t of Workforce Solutions,
2012-NMCA-021, ¶ 7, 274 P.3d 766 (“New
Mexico courts have not been stringent
about the form and content requirements
of documents filed in an effort to seek appellate review, so long as the information
provided in the non-conforming document is adequate to convey the basic intent
of the party filing the document.”). Thus,
the State’s notice of appeal is not necessarily invalid merely because it refers to the
district court order denying the motion
to reconsider, rather than referencing the
underlying, appealable suppression order.
{9}Defendant argues that, even if this
Court were to construe the State’s notice
of appeal as pertaining to the underlying
suppression order, the State’s appeal must
be dismissed because the appeal was not
timely filed within ten business days of
the suppression order. See § 39-3-3(B)(2)
(allowing the State ten days to file a notice
of appeal from an “order of a district court
suppressing or excluding evidence”); Rule
12-201(A)(1) (same); see also Rule 12308(A) NMRA (“When the period of time
prescribed or allowed is less than eleven
(11) days, intermediate Saturdays, Sundays
and legal holidays shall be excluded in the
computation”).
{10} The State concedes that it filed its
motion to reconsider almost a month
after the district court entered its order
suppressing evidence and that it filed the
notice of appeal nine business days after
the district court’s denial of the motion to
reconsider, almost four months after the
entry of the suppression order. The State
argues, however, that Defendant waived
his right to challenge the timeliness of the
State’s appeal because Defendant failed to
object to the timing of the State’s motion to
reconsider in district court. For the reasons
http://www.nmcompcomm.us/
that follow, we disagree that Defendant was
obligated to object in district court to the
timing of the State’s motion to reconsider.
{11} A district court possesses inherent
power to modify an order suppressing
evidence at any time prior to the entry of
final judgment in a case. See Sims v. Sims,
1996-NMSC-078, ¶ 59, 122 N.M. 618, 930
P.2d 153 (“District courts have plenary
power over their interlocutory orders and
may revise them . . . at any time prior to
final judgment.” (internal citation omitted)); see also Heinsen, 2005-NMSC-035,
¶ 12 (explaining that suppression orders
are interlocutory rulings).
{12} Although our procedural rules do
not grant the State an express right to file a
motion to reconsider a suppression order,
the common law has long recognized the
validity and utility of motions to reconsider in criminal cases. See State v. Roybal,
2006-NMCA-043, ¶¶ 14, 16, 139 N.M.
341, 132 P.3d 598 (finding authority for
motions to reconsider in the common law,
despite the fact that there is no “rule of procedure that specifically allows the State to
file a motion to reconsider or set aside an
order of dismissal in a criminal case”). Motions to reconsider “are a traditional and
virtually unquestioned practice and serve
judicial economy by permitting lower
courts to correct possible errors and thus
avoid time-consuming and potentially unnecessary appeals.” Id. ¶ 16 (internal quotation marks and citation omitted); see also
State v. Gonzales, 1990-NMCA-040, ¶ 43,
110 N.M. 218, 794 P.2d 361 (recognizing
that motions to reconsider enable lower
courts to correct errors, relieve appellate
courts of unnecessary burdens, and may
result in more expedient dispositions of
criminal cases).
{13} Accordingly, the State may move
the district court to reconsider an order
suppressing evidence at any time prior to
the entry of a final judgment. In this case,
Defendant had no cause to object when the
State filed a motion to reconsider almost
one month after the entry of the suppression order but before the entry of a final
judgment. The State’s motion to reconsider
constituted a timely, valid means to seek
relief in the district court.
{14} However, unlike a motion to reconsider, a notice of appeal from a suppression
order must be filed within the ten-day
period prescribed by Section 39-3-3(B)(2)
and Rule 12-201(A)(1). The State admits
that its notice of appeal was filed outside
this ten-day period but relies on Roybal,
2006-NMCA-043, ¶¶ 16-17, to argue that
a motion to reconsider tolls the appeal
period until after the district court has
ruled on the motion. Although we agree
that a motion to reconsider filed within
the permissible appeals period can toll the
time to appeal, we conclude that the appeal
time was not tolled in this case.
{15}In Roybal, our Court of Appeals
considered whether a motion to reconsider
a district court order, filed within the permissible time period for filing a notice of
appeal, can operate to suspend the finality of the court order and toll the time to
appeal until the district court has ruled
upon the motion. Id. ¶¶ 7, 16-17. Several
days after the district court entered an
order dismissing the case against Roybal,
the State filed two motions asking the
district court to reverse the dismissal. See
id. ¶¶ 4-6. Approximately four months
later, the district court denied the State’s
post-dismissal motions and entered an
amended order of dismissal. Id. ¶ 6. The
State then filed a notice of appeal within
thirty days of the district court’s denial
of the motions. Id.; see generally Rule 12201(A)(2) (allowing a party thirty days to
file a notice of appeal from an appealable
district court judgment or order, other
than an order suppressing evidence).
{16}The Roybal court concluded that
“the State’s post-dismissal motions suspended the finality of the original dismissal order and delayed the time for
appeal until the trial court disposed of
the State’s motions.” 2006-NMCA-043,
¶ 7. Under those circumstances, the full
thirty-day time period for filing an appeal began to run when the district court
disposed of the post-dismissal motions.
Id. ¶ 17. The Court of Appeals held that
the State’s notice of appeal was timely filed
because (1) the State filed its motions to
reconsider within the permissible time to
appeal, thus tolling the thirty-day appeal
period, and (2) the State’s notice of appeal
was filed within thirty days following the
district court’s disposition of the motions
to reconsider. Id.
{17} We agree with the Court of Appeals
that a motion to reconsider filed within
the permissible appeal period suspends
the finality of an appealable order or judgment and tolls the time to appeal until the
district court has ruled on the motion. See
id. This rule is consistent with our Rules of
Appellate Procedure, which provide that
certain post-judgment motions suspend
the time to appeal until such motions
have been determined by the district
court. See Rule 12-201(D) (“If a party
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
23
Advance Opinions
timely files a motion pursuant to Section
39-1-1 NMSA 1978, Paragraph B of Rule
1-050 NMRA, Paragraph D of Rule 1-052
NMRA, or Rule 1-059 NMRA, the full
time prescribed in this rule for the filing
of the notice of appeal shall commence to
run and be computed from the entry of an
order expressly disposing of the motion.”);
see also Grygorwicz, 2009-NMSC-009, ¶ 8
(explaining that “if a party makes a postjudgment motion directed at the final
judgment . . . , the time for filing an appeal
does not begin to run until the district
court enters an express disposition on that
motion”).
{18} Applying these principles to this
case, it is clear that the State cannot take
advantage of the rule in Roybal because
its motion to reconsider was filed outside
the permissible ten-day appeal period set
forth in Section 39-3-3(B)(2) and Rule
12-201(A)(1). The State concedes that it
filed its motion to reconsider twenty-nine
days after the order suppressing evidence,
“fifteen days too late under Roybal.” Accordingly, the motion to reconsider did
not toll the appeal period, and the State’s
notice of appeal was untimely.
{19} Finally, we reject Defendant’s contention that this Court must dismiss the
24
http://www.nmcompcomm.us/
State’s untimely appeal for lack of jurisdiction, and note that this Court retains
subject matter jurisdiction to consider an
untimely appeal. See Govich, 1991-NMSC061, ¶ 12 (explaining that this Court has
subject matter jurisdiction to consider an
untimely appeal). We do, however, require
an appellant to properly invoke this Court’s
jurisdiction by complying with mandatory requirements regarding the time and
place of filing a notice of appeal. See id.
(noting that this Court will “decline to
exercise discretion to excuse or justify any
improper attempt to invoke our jurisdiction”). This Court will excuse the untimely
filing of an appeal only if the appellant has
demonstrated that unusual circumstances
justify the late filing. See Gulf Oil Corp.
v. Rota-Cone Field Operating Co., 1973NMSC-107, ¶ 2, 85 N.M. 636, 515 P.2d
640 (per curiam) (declining to consider
an untimely petition for writ of certiorari
“absent some unusual circumstance justifying such late filing”); see, e.g., Schultz ex
rel. Schultz v. Pojoaque Tribal Police Dep’t,
2010-NMSC-034, ¶ 21, 148 N.M. 692,
242 P.3d 259 (excusing delay caused by
the United States Postal Service because
it constituted an unusual circumstance
outside the appellant’s control).
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
{20} Although this Court has discretion to consider the merits of an untimely
appeal, the State presents no unusual circumstances that justify its late filing in this
case. Accordingly, we decline to consider
the merits of the State’s appeal and grant
Defendant’s motion to dismiss.
CONCLUSION
{21} The State failed to file its notice
of appeal within the ten-day period
prescribed by Section 39-3-3(B)(2) and
Rule 12-201(A)(1). The State’s motion to
reconsider did not toll the time to appeal
because it was filed outside the permissible
ten-day appeal period. We therefore grant
Defendant’s motion to dismiss the State’s
appeal as untimely and remand this case to
the district court for further proceedings
consistent with this decision.
{22} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court
Opinion Number: 2015-NMSC-001
STATE OF NEW MEXICO, ex rel., HON. CARLOS R. CISNEROS, and
HON. GEORGE K. MUNOZ, As members of the New Mexico Legislature and
Citizens of New Mexico, HON. ALAN M. MALOTT, HON. J.C. ROBINSON,
HON. JEFF FOSTER MCELROY, and HON. LOUIS P. MCDONALD,
As New Mexico State District Court Judges and Citizens of New Mexico,
THE DISTRICT JUDGES ASSOCIATION OF NEW MEXICO, INC.,
a/k/a The District and Metropolitan Judges Association of New Mexico,
HON. DUANE K. CASTLEBERRY, HON. DAVID JOEL GARNETT,
HON. KAREN P. MITCHELL, and HON. WARREN WALTON,
As New Mexico Magistrate Court Judges and
Citizens of the State of New Mexico, and
THE NEW MEXICO MAGISTRATE JUDGES ASSOCIATION,
Petitioners,
v.
HON. SUSANA MARTINEZ, Governor of the State of New Mexico,
and HON. DIANNA J. DURAN, Secretary of State of New Mexico,
Respondents
No. 34,646 (filed December 4, 2014)
ORIGINAL PROCEEDING
RAY M. VARGAS, II
THE VARGAS LAW FIRM, L.L.C.
Albuquerque, New Mexico
for Petitioners
JESSICA HERNANDEZ
MATTHEW J. STACKPOLE
JEREMIAH L. RITCHIE
Santa Fe, New Mexico
for Respondent
Hon. Susana Martinez
Opinion
Per Curiam
{1} In the waning hours of the 2014
legislative session, the Legislature passed
the General Appropriations Act of 2014,
2014 N.M. Laws, ch. 63, §§ 1-14 (Appropriations Act), which included a pair of
salary increases for judges and justices of
the New Mexico state judiciary (collectively, judges). The first increase, funded
in Section 4(B) of the Appropriations
Act, was a 5% raise, the appropriation for
which was lumped in with various other
appropriations to the judicial branch to
pay the salaries of all judicial employees,
including judges. See 2014 N.M. Laws, ch.
63, § 4(B) (appropriating, for example,
GARY K. KING
Attorney General
SCOTT FUQUA
Assistant Attorney General
Santa Fe, New Mexico
for Respondent Dianna J. Duran
$7,049,600 to the First Judicial District
Court for “[p]ersonal services and employee benefits,” which included funds for
a 5% judicial pay increase for the judges
of that district). The 5% raise was not
separately identified in the language of
Section 4(B).
{2} The second increase, separately funded in Section 8(A) of the Appropriations
Act, was the same 3% raise authorized
for all eligible state employees, including
judges. See id. § 8(A). Section 8(A)(2) in
particular allocated $579,937 to fund the
3% raise for judges and increased the salary of a Supreme Court Justice to $134,922,
a sum that included both the 5% and the
3% raises.
{3}Calling out what she referred to as a
“dramatic 8% raise,” Governor Martinez
used her partial veto authority to strike
the following language from Section 8(A)
before signing the Appropriations Act into
law:
Section [8(A)] . . . The salary
increases shall be effective the
first full pay period after July 1,
2014, and distributed as follows:
...
(2) five hundred seventynine thousand nine hundred
thirty-seven dollars ($579,937)
to provide the justices of the
supreme court a salary increase
to one hundred thirty-four thousand nine hundred twenty-two
dollars ($134,922) and to provide
the chief justice of the supreme
court, the chief judge of the court
of appeals, and judges of the court
of appeals, district courts, metropolitan courts and magistrate
courts a salary increase pursuant
to the provisions of Section 34-19 NMSA 1978;
Id. § 8(A)(2). Significantly, the Governor
did not veto any of the appropriation
language or dollar amounts set forth in
Section 4(B) which included the funds
for a 5% raise.
{4} Thereafter, a group of judges, judicial
associations, and legislators (collectively,
Petitioners) petitioned this Court under
Article VI, Section 3 of the New Mexico
Constitution to issue a writ of mandamus
to the Governor and Secretary of State
Duran to declare the Governor’s veto of
Section 8(A)(2) unconstitutional. See
N.M. Const. art. VI, § 3 (“The supreme
court shall have original jurisdiction in . . .
mandamus against all state officers, boards
and commissions . . . .”). Petitioners also
asked this Court to order the Governor
and the Secretary of State to reinstate
Section 8(A)(2) and to implement the
full 8% raise passed by the Legislature, or
alternatively to implement the 5% raise
separately funded in Section 4(B).
{5} Citing a possible appearance of impropriety or bias about ruling on the issues
raised in the petition, the Chief Justice,
the Senior Justice, and two Associate
Justices of this Court recused themselves
from this proceeding. See Order, State ex
rel. Cisneros v. Martinez, No. 34,646 (N.M.
Sup. Ct. Apr. 16, 2014) (designating Justice
Richard C. Bosson as Chief Justice under
the rule of necessity for the purpose of
appointing justices pro tempore and presiding over this petition); see also Pierce
v. State, 1996-NMSC-001, ¶ 5, 121 N.M.
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
25
Advance Opinions
212, 910 P.2d 288 (recognizing the rule of
necessity articulated by the United States
Supreme Court that sometimes requires
members of a jurisdiction’s highest tribunal, as a matter of duty and necessity, to sit
and not recuse). In their place, a quartet
of retired jurists, consisting of a former
Chief Justice, two former Chief Judges of
the Court of Appeals, and a former Chief
Judge of the First Judicial District Court,
agreed to serve as justices pro tempore
for this proceeding. Accord State ex rel.
Chavez v. Vigil-Giron, 1988-NMSC-103, ¶
3, 108 N.M. 45, 766 P.2d 305 (explaining
that four district judges were appointed as
justices pro tempore after the chief justice,
senior justice, and two associate justices
recused themselves from appellate review
of constitutional reforms to the manner
of selecting and retaining future state
judges, including members of the Supreme
Court).
{6} After ordering full briefing and hearing the arguments of the parties, the Court
denied the petition in part, ruling from
the bench that the Governor’s veto was
effective with respect to the 3% raise set
forth in Section 8(A)(2). The Court also
granted the petition in part, ruling that
the 5% raise separately funded in Section
4(B) of the Appropriations Act was never
vetoed and therefore survived intact. We
issued a writ of mandamus consistent with
our ruling and ordered the Secretary of the
Department of Finance and Administration (DFA) to implement the 5% raise.1
We now issue this opinion to set forth our
reasoning in more detail.
BACKGROUND
{7}As we will explain more fully in this
opinion, Petitioners maintain that the
Governor’s veto of Section 8(A)(2), which
we upheld, had no effect on the 5% raise
included in Section 4(B). In response,
the Governor challenges the legality of
the Legislature’s method of appropriating
funds for the 5% pay raise in Section 4(B),
separate from Section 8(A)(2) and without
any language that specifically identified the
5% raise. We therefore inquire whether
any source of law prohibits the Legislature
from using an appropriation like that set
forth in Section 4(B)—which included
funds for a pay raise but without an explicit
mention of a raise—to establish a judicial
salary that includes a salary increase. This
is a matter of first impression, and we thus
begin with a brief overview of the various
methods the Legislature has used in the
26
1
http://www.nmcompcomm.us/
past to establish judicial salaries and pay
raises.
Historical Approaches To Establishing
Judicial Salaries
{8}Until 1953, judicial salaries were set
forth in the New Mexico Constitution.
See N.M. Const. art. VI, § 11 (as amended
through 1952) (providing that the annual
salary of a Supreme Court Justice shall
be $6,000); id. art. VI, § 17 (as amended
through 1952) (providing that the annual salary of a district court judge shall
be $4,500). As a result, salaries could be
changed only by amending the Constitution; that is, through a formal proposal
and vote in the Legislature followed by a
popular election. See N.M. Const. art. XIX,
§ 1.
{9}In 1953, a pair of constitutional
amendments removed the specific judicial
salary figures from the Constitution and
permitted the Legislature to “fix” or “provide” judicial salaries “by law.” See N.M.
Const. art. VI, § 11 (“The justices of the
supreme court shall each receive such salary as may hereafter be fixed by law.”); id.
art. VI, § 17 (“The legislature shall provide
by law for the compensation of the judges
of the district court.”). Two years later, the
Governor signed two statutes into law that
set forth the annual salaries of justices and
district court judges. See NMSA 1953, §
16-2-1.1 (1955) (providing that a Supreme
Court Justice shall receive an annual salary
of $15,000); id. § 16-3-33.1 (1955) (providing that a district court judge shall receive
an annual salary of $12,500); see also id. §
16-7-3 (1966) (providing that a court of
appeals judge shall receive an annual salary
of $18,500). For roughly the next 40 years,
judicial salaries could be changed only by
formally amending the relevant statutes;
that is, by passing a bill through both
chambers of the Legislature and presenting
it to the Governor for signature. See N.M.
Const. art. IV, § 22.
{10} In 1993, the Legislature repealed
the statutes that had been used to “fix” or
“provide” judicial salaries “by law” and
replaced them with NMSA 1978, Section
34-1-9 (1993, amended 2007), which the
Governor signed and which remains in
effect to this day. See 1993 N.M. Laws, ch.
278, § 1 (repealing NMSA 1978, Sections
34-2-2, 34-5-3, and 34-6-3 (1990)). Section 34-1-9 simply provides that Supreme
Court Justices shall receive an annual
salary that “shall be established by the
legislature in an appropriations act.” Sec-
tion 34-1-9 also sets forth a formula for
calculating the salaries of the Chief Justice
and all other judges and magistrates, using a Justice’s salary as the baseline. For
example, the Chief Justice’s annual salary
“is two thousand dollars ($2,000) more
than the annual salary of a justice of the
supreme court,” § 34-1-9(A); the annual
salary of a judge of the court of appeals “is
ninety-five percent of the annual salary of
a justice of the supreme court,” § 34-1-9(D)
(1); a district judge’s salary “is ninety-five
percent of the annual salary of a judge of
the court of appeals,” § 34-1-9(D)(2); and
so on.
{11} Requiring judicial salaries to be
established “by the legislature in an appropriations act” appears to have had at
least two important consequences. First,
it has simplified the process of establishing judicial salaries by eliminating the
need for substantive legislation that must
be separately signed by the Governor,
and instead allowing judicial salaries to
be included within the legislative budget
process. See, e.g., NMSA 1978, § 2-5-4(C)
(1967) (“Each state agency, department
and institution shall furnish to the legislative finance committee a copy of its appropriation request made to the department
of finance and administration at the same
time such request is made to such department.”). Second, it has required judicial
salaries to be established annually because
an appropriations act, by design, expires
or sunsets at the end of a fiscal year. See,
e.g., 2014 N.M. Laws, ch. 63, § 3(C), (E)
(providing that the amounts set forth in
Section 4 of the General Appropriations
Act of 2014 are appropriated “for expenditure in fiscal year 2015” and that any
unexpended balances at the end of the
fiscal year shall revert to the general fund).
And like any other general appropriations
act, an appropriation for judicial salaries is
subject to a valid exercise of the Governor’s
partial-veto authority. See N.M. Const. art.
IV, § 22 (“The governor may . . . disapprove
any part or parts, item or items, of any
bill appropriating money.”). We discuss
the Governor’s partial-veto authority in
more detail later in this opinion. Unless
properly vetoed, however, judicial salaries
including pay raises become law as part of
the appropriations process.
Legislative Approaches To Establishing
Judicial Salaries Under Section 34-1-9
{12} Since Section 34-1-9 was enacted
in 1993, the Legislature has used three
We joined the DFA Secretary as a party to the order for the purpose of implementing our ruling.
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
Advance Opinions
principal methods for establishing judicial
salaries. Two of the methods have been
used when the Legislature sought to increase judicial salaries. The third method
has been used when salaries were to remain
unchanged from the previous year’s levels.
{13} The first method appeared in the
General Appropriations Act of 1994, in
which the Legislature sought to give judges
a 3% raise. See 1994 N.M. Laws, ch. 6; see
also 1995 N.M. Laws, ch. 30. That year,
the Legislature funded judicial salaries,
including the 3% raise, in Section 4(B)
through the general appropriations to the
appellate courts and judicial districts to
pay the salaries of all employees of each
court or judicial district. See 1994 N.M.
Laws, ch. 6, § 4(B); see also 1995 N.M.
Laws, ch. 30, § 4(B). Like the 2014 appropriations we are examining in Section
4(B), these were lump-sum appropriations
that did not include a separate item for the
salaries of particular employees or classes
of employees. For example, the 1994 appropriation to the Supreme Court for
employee salaries simply provided:
SUPREME COURT:
Item (a) Personal Services
General Fund [$1,249,400]
Total [$1,249,400]
Item (b) Employee benefits
General Fund [$348,700]
Total [$348,700]
1994 N.M. Laws, ch. 6, § 4(B). The Legislature explained in a separate section of the
1994 Act that the appropriations in Section
4(B) included funds for a 3% pay increase
for all judicial employees, including judges,
and it set forth the prior salary and the new
salary of a Supreme Court Justice. See 1994
N.M. Laws, ch. 6, § 3(L)(c) (“[J]ustices of
the supreme court shall receive a three
percent salary and benefit increase, from
[$77,250] to [$79,567] . . . .”); see also 1995
N.M. Laws, ch. 30, § 3(N)(3) (“[J]ustices
of the supreme court shall receive a three
percent salary and benefit increase, from
[$79,567] to [$81,954] . . . .”).
{14} Since 1997, the Legislature has preferred a second method for establishing judicial salaries that included a pay increase,
electing to fund only existing salaries along
with the general appropriations to the judiciary in Section 4(B), and funding any
raise through a separate appropriation to
the DFA, a part of the executive branch,
in another section of the act much like
the present Section 8(A)(2). Compare,
e.g., 1997 N.M. Laws, ch. 33, § 4(B) (appropriating funds to the judicial branch
for “[p]ersonal services” and “[e]mployee
http://www.nmcompcomm.us/
benefits”), with id. § 9 (appropriating funds
to the DFA to provide a 2% raise to all
eligible state employees) (vetoed). Under
this approach, the Legislature’s appropriation to the DFA specifically provided that
judges would receive the raise, either by
identifying a percentage increase or by
stating the new salary. Compare, e.g., 1997
N.M. Laws, ch. 33, § 9(C)(2) (providing
that judges and justices shall receive a 2%
raise) (vetoed), with, e.g., 1999 N.M. Laws,
1st Spec. Sess., ch. 3, § 8(A)(1) (providing
a salary increase to $87,773).
{15} The third method of establishing
judicial salaries has arisen by implication in years when judges did not receive
a salary increase. In those years, the
appropriations acts were silent about
judicial salaries, with no language that
specifically mentioned judicial pay. Only
the dollar figures set forth in the general
appropriations to the judiciary in Section
4(B) showed by mathematical inference
the Legislature’s intent to establish judicial
salaries at the previous years’ levels. See,
e.g., 2009 N.M. Laws, ch. 124, § 4(B) (appropriating, for example, $2,797,300 to the
Supreme Court for “[p]ersonal services
and employee benefits”); 2010 N.M. Laws,
2d Sess., ch. 6, § 4(B) (appropriating, for
example, $2,813,100 to the Supreme Court
for “[p]ersonal services and employee
benefits”); 2011 N.M. Laws, ch. 179, § 4(B)
(appropriating, for example, $2,711,400
to the Supreme Court for “[p]ersonal
services and employee benefits”); 2012
N.M. Laws, ch. 19, § 4(B) (appropriating,
for example, $2,777,000 to the Supreme
Court for “[p]ersonal services and employee benefits”).
{16} A comparison of these three methods reveals a notable difference about the
recipient of the appropriations for judicial
salaries. In years when the Legislature used
the first or third method, it appropriated
the entire amount for judicial salaries
to the judicial branch. In years when it
used the second method, however, the
Legislature appropriated funds for existing salaries to the judicial branch, and
it appropriated funds for the raise to the
executive branch, to be distributed by the
DFA. The Legislature has never provided
an explanation for the different recipients
or the different methods of providing
judicial salaries and raises.
{17} All three methods also share important similarities. First, under each method
the appropriations in Section 4(B) have always been lump-sum appropriations without item-by-item language, and as such
Section 4(B) has never included a separate
line or item for judicial salaries, even in
years when it included funds for a judicial
salary increase. Instead, the money appropriated in Section 4(B) for judicial salaries
has been an inseparable, unspecified portion of a larger appropriation to a court
or judicial district. And second, when the
Legislature has sought to increase judicial
salaries, it has expressly identified the
raise elsewhere in the appropriations act,
apart from the general appropriations for
judicial employee salaries in Section 4(B).
The 2014 Approach—A Hybrid Method
{18} In 2014, the Legislature tried something different, a hybrid of sorts. Borrowing from the first method described above,
the Legislature appropriated funds for
existing judicial salaries in Section 4(B),
plus sufficient funds for a 5% pay raise
through the general appropriations to the
judicial branch. And borrowing from the
second method, the Legislature in Section 8(A) separately appropriated funds
for a 3% raise through an appropriation
to the DFA. See 2014 N.M. Laws, ch. 63,
§ 8(A) (“Nineteen million seven hundred
ninety-one thousand six hundred dollars
($19,791,600) is appropriated from the
general fund to the department of finance
and administration for expenditure in fiscal year 2015 to provide salary increases of
three percent to employees in budgeted
positions who have completed their probationary period subject to satisfactory job
performance.”).
{19} As part of the appropriation for the
3% raise, the Legislature directed the DFA
to distribute $579,937 of the appropriation
“to provide the justices of the supreme
court a salary increase to . . . $134,922,”
and to provide the Chief Justice and other
judges and magistrates with a salary increase under Section 34-1-9. See id. § 8(A)
(2). The parties agree that the $134,922
salary in Section 8(A)(2) did not match the
3% raise funded in that same provision; it
was $9,994 more than the previous year’s
salary of $124,928 and represented a total
increase of 8%. Compare id. § 8(A)(2)
(increasing the salary of a Supreme Court
Justice to $134,922), with 2013 N.M. Laws,
ch. 227, § 8(A)(2) (increasing the salary of
a Supreme Court Justice to $124,928).
{20} We pause to emphasize a critical
point. In this writ proceeding, there is no
serious dispute that the appropriations for
personal services and employee benefits
in Section 4(B) did, in fact, include funds
for the 5% raise, though the funds were
not specifically identified as such. Indeed,
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
27
Advance Opinions
Petitioners appended to their reply brief
several documents purporting to prove
that the 5% raise was part of the Section
4(B) appropriations, including an affidavit
from Senator George Munoz, a party to this
proceeding and an LFC member, testifying
that Section 4(B) included funds for a 5%
raise. Senator Munoz’s affidavit included
two attachments in support of his testimony: a pre-session recommendation by
the Legislative Finance Committee (LFC)
to appropriate funds in the Appropriations
Act to provide a 5% pay increase to justices
and judges; and a post-session LFC report
explaining that Section 4(B) included
funds for a 5% judicial pay raise. Similarly,
the Governor appended an affidavit from
the Director of the State Budget Division of
the DFA explaining certain elements of the
budgetary process and acknowledging that
Section 4(B), “contains more funding than
is necessary to fund judges’ salaries at the
fiscal year 2014 level.” The Director states
that this additional funding can be used
for other expenses or revert to the general
fund, but he never contradicts the premise
that the additional funds were intended to
provide a 5% raise to judges or that they can
be used for that purpose. No party objected
to or moved to strike any of these exhibits.
{21} While none of these documents
is talismanic, we consider them insofar
as they support the obvious conclusion:
the Legislature’s unusual, two-phased approach to funding judicial salaries was a
matter of common knowledge. Everyone
involved in the budgetary process seems
to have understood that the Legislature
gave judges two raises: the same 3% raise
in Section 8(A)(2) provided to all qualified state employees, and a separate 5%
raise in Section 4(B), commingled with
the appropriations for the salaries of all
judicial employees and publicized in
key legislative documents. See, e.g., LFC
FY2015 Budget Recommendations, available at http://www.nmlegis.gov/lcs/lfc/
lfcdocs/budget/ 2015RecommendVolII.
pdf, at 14 (“[T]he courts requested an additional [$617,000] to provide all judges a
5 percent compensation increase . . . . The
[LFC] recommendation provides adequate
funding for . . . a 5 percent compensation
increase for judges . . . .”).2
http://www.nmcompcomm.us/
{22} Recognizing that the new salary
figure set forth in Section 8(A)(2) was
the sum of both the 5% and 3% raises,
the Governor vetoed that provision in its
entirety, explaining:
I have vetoed the compensation
increases for . . . elected judges
throughout the state.
...
[T]hough I would have supported
a more modest 3% increase in pay
for judges that would have put
them on par with other pay raises
in the budget, I cannot support
the dramatic 8% raise requested
in the budget.
Senate Executive Message No. 112 (Mar.
11, 2014), available at http://governor.
state.nm.us/uploads/FileLinks/8c4df00e
709649488058c836188fb9d5/SEM112_1.
pdf. Based on her explanation, it seems
clear that the Governor believed that her
veto of Section 8(A)(2) eliminated both
raises. We now turn to that question:
whether the Governor’s veto was effective
in regard to either section of the Appropriations Act.
DISCUSSION
{23} On previous occasions when this
Court has been called upon to consider the
proper exercise of the Governor’s partial
veto authority, we have tried to articulate a
set of guiding principles, rooted in the idea
that the partial veto power is “a negative
power, or a power to delete or destroy a
part or item, and . . . not a positive power,
or a power to alter, enlarge or increase the
effect of the remaining parts or items.”
State ex rel. Sego v. Kirkpatrick, 1974NMSC-059, ¶ 18, 86 N.M. 359, 524 P.2d
975. Thus, a partial veto must “destroy[]
the whole of an item or part [without]
distort[ing] the legislative intent.” Id.;
see also State ex rel. Smith v. Martinez,
2011-NMSC-043, ¶ 8, 150 N.M. 703, 265
P.3d 1276 (“Our case law emphasizes the
limitation of the Governor’s partial veto
power by requiring that the veto eliminate
the whole of an item or part and prohibiting the striking of individual words that
result in legislation inconsistent with
the Legislature’s intent.”). These broad
principles provide only the starting point
of our analysis; ultimately, each situation
has come down to the particular facts of a
particular appropriation and a particular
veto. See, e.g., Sego, 1974-NMSC-059, ¶ 11
(separately analyzing the validity of seven
vetoes). This case is no less fact bound than
those that have come before us in the past.
{24} At oral argument before this Court
the Governor took the position that regardless of what the Legislature’s original
intent may have been to make two separate
appropriations, that intention changed or
evolved as the Appropriations Act took
final form. Relying on the one, lump sum
salary figure set forth in Section 8(A)(2),
the Governor argued that the Legislature’s
ultimate intent was to provide a single
8% raise in Section 8(A)(2) which the
Governor duly vetoed. This argument is
not without a certain logic because, as
we have indicated, that lump sum salary
figure ($134,922) is the total sum of both
appropriations.
{25} But we do not find the Legislature’s
intent so easy to discern from Section
8(A)(2). The unexplained mismatch in
that provision between the funds allocated for the 3% raise and the salary that
represented an 8% raise—a mismatch
the Governor recognized—renders the
meaning of Section 8(A)(2) unclear. At
the very least, the mismatch signaled that
Section 8(A)(2) was not the only portion
of the Appropriations Act that concerned
a judicial pay increase.
When legislative language is “unclear,
ambiguous, or reasonably subject to multiple interpretations,” we look to other indicators of legislative intent, including “the
history, background, and overall structure
of the statute.” See State v. Almanzar, 2014NMSC-001, ¶ 15, 316 P.3d 183. Based on
the Appropriations Act’s structure, we are
convinced that the Legislature intended
two raises. To conclude otherwise would
require us to overlook the Legislature’s own
choice to fund these raises through two
separate appropriations, contained in two
separate sections of the Appropriations
Act, and made to two separate branches of
government—5% to the Judiciary and 3%
to the DFA. Under these circumstances,
we are persuaded that the Legislature intended two separate raises and provided
appropriations for them in two separate
The LFC also noted that its recommendation
took into account the findings of the legislatively created Judicial Compensation Commission which recommended increasing judicial salaries by 11 percent to bring New Mexico judge salaries in line with those in Oklahoma. The 5 percent salary
increase requested would increase a district judge’s salary from $113 thousand to $119 thousand. The commission found
that New Mexico’s district court judges are the lowest paid in the country.
LFC FY2015 Budget Recommendations, supra, at 14.
28
2
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
Advance Opinions
sections of the Appropriations Act, one of
which the Governor vetoed, the other of
which remained intact.
{26} The salary figure set forth in Section 8(A)(2) does not compel a different
conclusion. Rather than showing that the
Legislature intended to provide a single 8%
raise, we view the salary as signaling the
Legislature’s unusual approach to establishing judicial salaries in the Appropriations Act. The salary on its face is more
than the 3% raise appropriated in Section
8(A), indicating that the Legislature had
appropriated a separate 5% raise for judges
elsewhere in the Act—not in Section 8(A)
(2)—which the parties knew to be Section
4(B). Having concluded that the Legislature intended two separate raises, we now
consider the veto’s effect on each raise in
turn.
The Veto Eliminated the 3% Raise
{27} The veto’s effect on the 3% raise
strikes us as a fairly easy question. The
parties do not dispute that the Legislature intended the money allocated in
Section 8(A)(2) to fund the same 3%
raise for judges that was given to other
state employees in Section 8(A). Nor do
they dispute that the Governor’s veto
removed from the Appropriations Act
every trace of the 3% raise for judges by
eliminating all language related to the
3% raise, the entire allocation for the
3% raise, and the salary that included
the raise. Everything related to the 3%
raise for judges was confined to Section
8(A)(2), which the Governor vetoed in
its entirety. Our case law requires nothing more. See, e.g., State ex rel. Dickson
v. Saiz, 1957-NMSC-010, ¶ 28, 62 N.M.
227, 308 P.2d 205 (“It mattered not where
in the bill they rested if they constituted
an integral part of the subject being
partially vetoed—out they came!”). The
veto “destroy[ed] the whole” of the 3%
raise for judges and therefore was an effective exercise of the Governor’s partial
veto authority.
http://www.nmcompcomm.us/
The Veto Did Not Eliminate the 5% Raise
{28} The closer question is whether the
veto of Section 8(A)(2) had any effect
on the 5% raise funded in Section 4(B).
Petitioners contend that even if the veto
of the 3% raise was effective, the 5% raise
was unaffected because the Governor did
not veto the appropriations in Section
4(B) that included funds to pay for the 5%
raise. In a series of related arguments, the
Governor counters that because her veto
of Section 8(A)(2) eliminated the Appropriations Act’s only explicit mention of a
judicial pay increase (“to provide the chief
justice [and other judges] a salary increase
pursuant to the provisions of Section 341-9”), her veto simply left salaries intact at
the previous year’s levels. In other words,
the Governor takes the position that her
veto of Section 8(A)(2) reached beyond
the 3% raise funded in that provision and
also eliminated the 5% raise funded in Section 4(B). We now turn to a more detailed
examination of the Governor’s arguments.
The Legislature’s historical practice,
though informative, does not necessarily
control how the Legislature may choose to
act in a different legislative session
{29} The Governor relies heavily on years
when the general appropriations acts were
silent about judicial pay to argue that her
veto of Section 8(A)(2) eliminated the 5%
raise in Section 4(B). She contends that
the vetoed Appropriations Act “looks
identical to the general appropriations
acts in dozens of other years . . . when
the legislature has simply omitted any
authorization of new judicial salaries”
and judges continued to be paid at the
previous year’s salary levels. By contrast,
in years when the Legislature has sought
to give judges a raise, the Legislature has
explicitly identified the raise in a separate
provision of the appropriations act. The
Governor therefore maintains that judges
must continue to be paid at their 2014
salary levels. Like previous years when
judges did not receive a raise, her veto left
no language in the Appropriations Act to
explicitly “authorize” a raise, whether 3%,
5%, or both.
{30} Petitioners respond that nothing in
the law requires the Legislature to “authorize” a raise in the manner the Governor
prescribes. Rather, the New Mexico Constitution and Section 34-1-9 require only
that judicial salaries be “fixed,” “provided,”
or “established” by the Legislature in an
appropriations act, without specifying
where or how in the act the Legislature
must do so or what language or detail the
Legislature must employ to establish judicial salaries. Petitioners also point to years
when the appropriations acts were silent
about judicial salaries as evidence that the
Legislature may “establish” judicial salaries
with a mere appropriation. In this instance,
Petitioners have the more accurate argument.
{31} As previously explained, under Section 34-1-9 judicial salaries must annually
be “established by the Legislature in an
appropriations act” because appropriations
acts expire or sunset after a year. Thus, in
those years when the appropriations acts
did not explicitly reference judicial pay, the
general appropriations to the judiciary in
Section 4(B), which included unspecified
amounts to fund judicial salaries, were
sufficient to “establish” judicial salaries as
required by statute.3 As was true this year,
it was understood in those years that the
Legislature had appropriated funds to pay
judges at a particular level, even without
specific language in the act to provide a
base figure for the formula in Section 341-9.
{32} And while in recent years it may
have been the Legislature’s historical
practice— and perhaps even the better
practice—to explicitly identify a judicial
salary increase separately from Section
4(B), we have found nothing in the law
that requires the Legislature to do so.
We are unable to find support for the
Governor’s contention to the contrary.
3 The evolution of Section 34-1-9 supports this view. From its enactment in 1993 until it was amended in 2004, Section 341-9(A) provided, “Justices of the supreme court shall each receive an annual salary of seventy-seven thousand two hundred fifty
dollars ($77,250).” The statute also provided, “For [fiscal year 1995] and all subsequent fiscal years, the annual salary for justices of
the supreme court . . . shall be established by the legislature in an appropriations act.” Between 1993 and 2004, the annual salaries
of judges were increased at least four times, including in 2000, when the annual salary of a Supreme Court Justice was increased to
$90,407. See 2000 N.M. Laws, 2d. Sess., ch. 5, § 10. But the following two years, the appropriations acts were silent about judicial
salaries. In 2001, the Governor vetoed the appropriations to the DFA for compensation increases for all state employees, leaving only
the general appropriations for existing salaries in Section 4, see 2001 N.M. Laws, ch. 64, § 9 (vetoed), and in 2002, the appropriations
act did not include any language about judicial salaries, other than the general appropriations in Section 4(B), see 2002 N.M. Laws,
Extraordinary Sess., ch. 4. In each of those years, judicial salaries seemingly would have reverted to the 1993 level still codified in
Section 34-1-9(A), but for the appropriations in Section 4(B) that “established” salaries—with or without language to that effect—at
the same level established in the 2000 general appropriations act.
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
29
Advance Opinions
No constitutional or statutory provision
limits how the Legislature may choose to
establish judicial salaries, including pay
raises, as long as they are “established by
the legislature in an appropriations act.”
Section 34-1-9 (E). The details for establishing judicial salaries—like many parts
of the appropriations process—appear to
be entrusted to the discretion of the Legislature. The Constitution requires only
that every law “making an appropriation”
shall “specify” the “sum appropriated” and
the “object to which it is to be applied.”
N.M. Const. art IV, § 30. No party challenges the 5% pay raise under Article IV,
Section 30. Absent any such limitation
clearly imposed on a co-equal branch of
government, whether by constitution or
statute, principles of judicial restraint and
respect for the constitutional separation
of powers dictate that we not invent one.
See 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 . . . .”).
{33} More importantly, to treat the
vetoed Appropriations Act the same as
previous appropriations acts—when
legislative silence about judicial salaries
maintained the status quo—would be to
ignore a critical difference. Even after the
veto, this year’s appropriations in Section
4(B) still included money for a raise, when
the prior years’ appropriations did not. To
ignore this distinction would be to turn
a blind eye to the obvious—to treat the
appropriation for the 5% raise as though
it were hidden in plain sight. We decline
to do so. The appropriations in Section
4(B) were sufficient to “establish” judicial
salaries, including a 5% raise. More to the
point, nothing in the law dictates that the
Legislature could not establish judicial
salaries in that fashion.
To veto the 5% raise, the Governor had
to veto the appropriations in Section 4(B)
{34} In support of a related argument,
the Governor cites our recent opinion
in Stewart to argue that the money appropriated in Section 4(B) to fund the
5% raise cannot be used for its intended
purpose because her veto eliminated all
of the “language” in the Appropriations
Act related to a judicial salary increase.
See Stewart, 2011-NMSC-045, ¶ 15 (“All
language that relates to the subject to be
30
http://www.nmcompcomm.us/
proscribed by the veto must be vetoed for
the veto to be valid.” (emphasis added)).
The Governor asserts that the judicial entities that received the additional money in
Section 4(B) may spend it on any expenses
related to personal services or employee
benefits—except to increase judicial salaries. She alternatively suggests that the
courts may follow the DFA’s established
procedures for transferring funds between
appropriated categories, or may allow the
money to revert to the general fund at the
end of the fiscal year.
{35} The Governor’s argument overlooks
the distinct facts of this case. The Legislature gave judges a 5% raise through the
appropriations in Section 4(B), without
any “pay raise language” to veto but the
appropriations themselves. Under these
circumstances, the general rule articulated in Stewart that “[a]ll language that
relates to the subject to be proscribed by
the veto must be vetoed for the veto to be
valid” simply does not apply. See Stewart,
2011-NMSC-045, ¶ 15 (emphasis added).
The Legislature having left no language to
veto in Section 4(B), the Governor could
not rely on her veto of other language
elsewhere in the Act appropriating other
money. We do not read Stewart so narrowly that it alters the Governor’s underlying
responsibility when exercising her partialveto authority: to “destroy[] the whole of
an item or part [without] distort[ing] the
legislative intent.” Sego, 1974-NMSC-059,
¶ 18. Consistent with our admonition in
Sego, the Governor had to veto the “whole”
appropriation where the Legislature placed
it. The appropriations in Section 4(B)
represented the only “language” for the
Governor to veto if she disapproved of the
5% raise.
{36} Petitioners argue that the Governor’s assertion—that the funds for the
5% raise may be spent on anything but
a 5% raise—supports their position that
they should receive both the 5% and 3%
raises passed by the Legislature. Petitioners contend that the veto of Section 8(A)
(2), itself, was unconstitutional under
Sego because it “alter[ed] . . . the effect”
of the funds intended for the 5% raise by
requiring them to be spent on something
other than the raise, effectively “creat[ing]
new legislation.” See Sego, 1974-NMSC059, ¶ 18 (“The power of partial veto is . .
. a negative power, or a power to delete or
destroy a part or item, and . . . not a positive power, or a power to alter, enlarge or
increase the effect of the remaining parts
or items. It is not the power to enact or
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
create new legislation by selective deletions.” ). We do not reach this argument
because of our determination that the
Legislature intended two separate raises.
The veto of Section 8(A)(2) had no effect
on the 5% raise funded in Section 4(B).
The only way to eliminate the 5% raise was
to veto the appropriations in Section 4(B)
that included the funds for that purpose.
Including the 5% raise in the Section 4(B)
appropriations was not unconstitutional
“subtle drafting”
{37} Finally, the Governor contends that,
if the veto of Section 8(A)(2) did not also
eliminate the 5% raise in Section 4(B),
the entire appropriation in Section 4(B)
“is improper and should be stricken” due
to “careful drafting of legislation” aimed
at “circumvent[ing] or preempt[ing] the
Governor’s veto power.” This argument is
based on our suggestion in Sego that “[t]he
Legislature may not properly abridge [the
Governor’s partial veto] power by subtle
drafting of conditions, limitations or
restrictions upon appropriations.” 1974NMSC-059, ¶ 12. However, Sego did not
apply or otherwise develop that language
or consider the possible results of “subtle
drafting” on a properly exercised partial
veto.
{38} Not until State ex rel. Coll v. Carruthers were we faced with a situation that
required us to consider the limitation that
we had placed on the Legislature in Sego.
See 1988-NMSC-057, 107 N.M. 439, 759
P.2d 1380. In Coll, the petitioners challenged Governor Carruthers’ veto of a
restriction or condition imposed by the
Legislature upon an appropriation that
prohibited the Second Judicial District
Attorney’s Office from spending any of
its general appropriation on “rental of
parking space.” Id. ¶ 10. The Court first
considered the restriction itself, which the
parties agreed would have affected only
$4,000 of a $4,500,000 appropriation—
less than 0.1% of the appropriation—and
held that it violated separation-of-powers
principles by intruding on the executive function by “attempt[ing] to make
detailed, min[u]scule, inconsequential
executive management decisions.” Id. ¶
11. The Court then rejected the petitioners’ fallback argument that the veto was
invalid because it distorted the Legislature’s intent in violation of Sego:
The legislature may not artfully
draft conditions or restrictions
that would force the governor to
veto an entire appropriation to
a particular agency in order to
Advance Opinions
reach a limitation or condition he
finds constitutionally offensive.
If this line of reasoning were
followed the governor would
be left with the option of either
vetoing the entire appropriation
of $4,500,000 or accepting the restriction. The restriction was not
a proper restriction or condition
and as such was subject to veto
by the governor. The legislature
left the governor no reasonable
alternative. The veto was valid.
1988-NMSC-057, ¶ 15. Coll remains the
only instance in which this Court has rejected a challenge to a partial veto based, at
least in part, on a refusal to validate “artful
drafting” by the Legislature.
{39} Upon close examination, we think
Coll is of little use here. In 2014 the Legislature imposed no condition—minuscule
or otherwise—upon its appropriations
for judicial pay raises. Sections 8(A)(2)
and 4(B) are stand-alone, unconditional,
and separate appropriations, and as such
must be vetoed in their entirety like any
other appropriation of which the Governor
disapproves in whole or in part.
{40} With respect to Section 4(B) in particular, the Legislature routinely includes
funds in general appropriations acts, like
the funds for the 5% raise, that are earmarked for certain purposes but that are
not identified in separate lines or items;
rather, they are combined with other,
similarly situated funds sharing a common “object to which [the appropriation]
is to be applied.” N.M. Const. art IV, § 30.
The Governor provides no authority for
the proposition that the Legislature must
treat funds for judicial raises differently by
separating them from the general object of
the appropriation—personal services and
employee benefits.
{41} More importantly, reading Coll to
prevent the Legislature from acting as
it did in this case would lead to absurd
results. Nothing in the New Mexico Constitution requires the Legislature to make
appropriations easy to veto by identifying
each appropriation in a separate line or
item in an appropriations act. If that were
Coll’s holding, general appropriations
acts would necessarily become immense.
They would be transformed into highly
detailed documents that would have to
identify the specific object of every dollar
appropriated by the Legislature. That was
clearly not Coll’s intended effect, and the
New Mexico Constitution does not require
anything like it. See Coll, 1988-NMSC-057,
http://www.nmcompcomm.us/
¶ 11 (holding a provision of the 1988 appropriations act unconstitutional because
the Legislature had “attempt[ed] to make
detailed, min[u]scule, inconsequential
executive management decisions” about
how the district attorney’s office could
spend a portion of its base budget).
{42} To the extent that the Governor
invites us to interpret the notion of
“subtle drafting” to fit the circumstances
of this case, we are unwilling to do so.
The Governor has not provided a limiting
principle to distinguish subtle drafting
from drafting that is not-so-subtle, and
we do not consider it wise to fashion one
on our own. See Elane Photography, LLC
v. Willock, 2013-NMSC-040, ¶ 70, 309
P.3d 53 (“It is of no benefit either to the
parties or to future litigants for this Court
to promulgate case law based on our own
speculation rather than the parties’ carefully considered arguments.”). Outside of
the facts of Coll, in which we refused to
allow the Legislature to use Sego to shield
an unconstitutional restriction from the
Governor’s veto pen, we remain respectful
of constitutional separation of powers and
accordingly prefer to allow the legislative
process to play out free from judicial interference, so long as the process is open
and transparent. Cf. Martinez v. Jaramillo,
1974-NMSC-069, ¶ 9, 86 N.M. 506, 525
P.2d 866 (“The mischief to be prevented
[by Article IV, Section 16 of the New
Mexico Constitution] was hodge-podge
or log-rolling legislation, surprise or fraud
on the legislature, or not fairly apprising
the people of the subjects of legislation so
that they would have no opportunity to be
heard on the subject.”).
The appropriations process offers the best
solution
{43} In truth, the appropriations process
is largely unregulated; our constitution has
left it that way for over one hundred years.
As we explained forty years ago in Sego,
The legislative power of the
State of New Mexico is vested
in the Legislature. Except for
interest or other payments on
the public debt, money shall be
paid out of the treasury of the
State only upon appropriations
made by the Legislature, and
every law making an appropriation shall distinctly specify the
sum appropriated and the object
to which it is to be applied. The
supreme executive power of the
State is vested in the Governor,
whose principal function, inso-
far as legislatively enacted law is
concerned, is to faithfully execute
these laws. [She] does, however,
have the power to exercise veto
control over the enactments of
the Legislature to the extent that
this power or authority is vested
in [her] by Art. IV, § 22, supra.
As to bills appropriating money,
[she] clearly has the power to veto
a “part or parts” or “item or items”
thereof.
1974-NMSC-059, ¶ 12 (internal citations
omitted).
{44} The New Mexico Constitution
also provides the political and logistical
framework within which the appropriations process takes place. The Legislature
is tasked with passing a general appropriations act each year and with submitting it
to the Governor for approval. See N.M.
Const. art. IV, § 22. The Governor may,
and often does, participate in and influence the legislative process as the bill takes
shape. See, e.g., NMSA 1978, § 6-3-21(A)
(2004) (“The governor shall prepare the
budget and submit it to the legislative
finance committee and each member of
the legislature not later than January 5 in
even-numbered years and not later than
January 10 in odd-numbered years.”).
Direct, oftentimes frank discussions may
take place. If a particular appropriation
amounts to a “deal breaker” for the Governor, the Legislature then has to weigh
the value of that particular appropriation
against the likelihood of a gubernatorial
veto and even the possibility of a special
session. This is all part of the give and take
of any legislative session, and it is where
the competing interests of those two coequal branches of state government are
best played out.
{45} But with a few exceptions that are
not relevant here, see N.M. Const. art.
IV, § 16, the act’s form and substance
are left to the Legislature. Once the act is
presented to the Governor, her role is a
limited one. If an act is presented to her
more than three days before the end of a
legislative session, she may refuse to sign
it, note her objections, and send it back to
the Legislature. See N.M. Const. art. IV, §
22. In that event, the act cannot become
law unless two-thirds of the members of
the house and senate vote to override the
Governor’s objections. See id. If the act is
presented to the Governor during the last
three days of a session, she may refuse to
sign it, or she may “disapprove any part or
parts, item or items” of the bill and sign the
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
31
Advance Opinions
remainder into law. Id. In the event that the
Governor vetoes the entire appropriations
act or an essential portion, she may call the
Legislature back for a special session. See
N.M. Const. art. IV, § 6.
{46} Historically, this is a process in
which the judicial branch has been reluctant to interfere, a “delicate constitutional
balance between the executive and the
legislative branches of government.” Coll,
1988-NMSC-057, ¶ 9 (quoting Colorado
General Assembly v. Lamm, 704 P.2d 1371,
1377 (Colo. 1985) (en banc)). We will not
speculate about the Legislature’s motive
for choosing this particular method of
providing the 5% raise. A clear effect of
that choice, however, was to make the
raise more challenging for the Governor to
veto if she found it objectionable; she had
to veto the entire appropriation. We are
unable to find any legal basis to conclude
that this amounted to legislative overreach,
especially when the Governor had notice
of the Legislature’s intent and when she
32
http://www.nmcompcomm.us/
had other tools in the political process at
her disposal. We reiterate that the New
Mexico Constitution does not prescribe
a particular method that the Legislature
must follow when it appropriates funds.
Accordingly, the Legislature remains free
to use any of the methods that it has used
in the past, or to create new ones, provided
that the Governor receives sufficient notice
to permit her to meaningfully exercise her
partial-veto authority. See N.M. Const. art.
IV, § 22.
{47} Finally, we note the unusual context
in which this case has arisen; to a great
extent it is unlike any of our precedents. To
our knowledge, the Legislature’s method
of appropriating funds to increase judicial
salaries was novel, as was the Governor’s
attempt to eliminate both raises by vetoing only one appropriation and leaving
the other intact. With this ruling, we
are upholding the valid exercise of the
Governor’s partial veto authority, while at
the same time we uphold the Legislature’s
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
broad authority to fashion general appropriations acts in its discretion, absent
a specific prohibition in the New Mexico
Constitution.
CONCLUSION
{48} The Governor’s veto of Section 8(A)
(2) successfully “destroy[ed] the whole” of
the 3% judicial pay increase. The veto had
no effect on the 5% increase separately
funded in Section 4(B).
{49} IT IS SO ORDERED.
RICHARD C. BOSSON, Justice,
Chief Justice, Sitting by Designation
PATRICIO M. SERNA, Justice,
Retired, Sitting by Designation
A. JOSEPH ALARID, III, Judge,
Retired, Sitting by Designation
CELIA F. CASTILLO, Judge,
Retired, Sitting by Designation
JAMES A. HALL, Judge, Retired,
Sitting by Designation
Jack Campbell
Larry Wells
Albuquerque Office
6301 Indian School Rd. N.E., Suite 400
Albuquerque, N.M. 87110
505-884-4200
Montgomery & Andrews is proud to announce that Jack
Campbell and Larry Wells have become shareholders in
the firm. Jack Campbell brings a wealth of experience
to the firm, with a focus on real estate, business and
commercial matters, including estate planning and tax
matters. Larry Wells is a highly regarded commercial
attorney, with his primary focus on real estate and
related transactions. They will remain temporarily in
their offices located in City Place and will physically join
the rest of Montgomery & Andrews Albuquerque team
when the firm moves to its new offices in the Journal
Center area in early summer.
Larry Wells & Jack Campbell
2155 Louisiana, NE Suite 10300
Albuquerque, N.M. 87110
505-766-9926
Santa Fe Office
325 Paseo de Peralta
Santa Fe, N.M. 87501
505-982-3873
www.montand.com
NEW MEXICO LAWYERS and JUDGES
ASSISTANCE PROGRAM (JLAP)
JLAP has helped save
my life and make my
career a reality!
–HN
Attorney
Steve Henry
is accepting mediation referrals
• 38 years of litigation experience,
over 300 jury trials
Free, confidential assistance
to help identify and address problems
with alcohol, drugs, depression,
and other mental health issues.
Help and support are only a phone call away.
Confidential assistance –
24 hours every day.
Judges call 888-502-1289
Lawyers and law students call
505-228-1948 or 800-860-4914
www.nmbar.org
• Expertise in complex litigation,
personal injury, wrongful death,
insurance coverage disputes
and insurance bad faith/
extra-contractual claims
• Experience as both insurance defense
attorney and Plaintiff ’s attorney
Rates are $250 per hour for time spent
No waiting for mediation dates!
Steven C. Henry, Attorney at Law, llc
505-828-0127 • [email protected]
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
33
Personal Trust Services
Zia Trust, The Advisors’ Trust Companysm. We
are an independent corporate trustee, primarily
serving the Rocky Mountain region.
Zia Trust can meet a broad range of fiduciary
needs working in collaboration with the grantor
or beneficiary and their advisory team made up
of their estate planning attorney, their investment
advisor, CPA and others.
We retain your investment advisor
to manage trust assets.
Please consider Zia Trust, Inc. as your choice for Corporate Trustee.
• Reliability
• Expertise
• AvoidConflictsofInterest
• Availability
• Stabilized Family
Dynamics
We have a team of 25 employees, including 10 full time Trust
Officers demonstrating Zia Trust’s commitment to providing the
highest quality fiduciary customer service. In addition to our Rocky
Mountain focus, we serve clients in 41 states around the U.S.
We welcome the Opportunity to serve you.
Contact John Attwood at 1-800-996-9000
www.ziatrust.com
Representing Victims of Violence CLE
The Volunteer Attorney Program is hosting a CLE entitled
“Representing Victims of Violence at Order of Protection
Hearings” from 1:30 pm - 3:30 pm on February 20, 2015
at the State Bar of New Mexico, 5121 Masthead St. NE
Albuquerque, NM 87109.
The CLE (2.0 G) will be presented by
the Honorable Debra Ramirez,
Second Judicial District Family Court Judge
and Rosemary Traub, New Mexico Legal Aid Attorney.
Free for VAP volunteers.
Donations welcome from non-volunteers
($50 or more per person suggested).
If you would like to attend this CLE,
please contact Aja Brooks at (505) 797-6040
or [email protected].
When First
Impressions Matter
Brought to you by the
Digital Print Center
Featuring:
• business cards
• envelopes
• stationery
• brochures
• presentation booklets
• invitations
Quality, full-color printing.
Local service with fast turnaround.
For more information,
contact Marcia Ulibarri
at 505-797-6058 or
[email protected]
Ask about your member discount.
DIGITAL PRINT CENTER
34
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
ALBUQUERQUE LAW-LA-PALOOZA
Help us address the needs of
low-income New Mexicans!
Pauline A. Fay
Structured Settlement Broker
Structured Financial Associates, Inc.
Tel: 505-922-1254 • [email protected]
www.sfainc.com
… providing the right solutions through
outstanding Structured Settlement Services
The only Structured Settlement Broker
who calls Albuquerque home.
!
Caren I. Friedman
APPELLATE SPECIALIST
________________
The Second Judicial District Pro Bono Committee is hosting
Law-La-Palooza, a free legal fair, on Thursday, February 26,
2015 from 3:00-6:00 p.m. at the Raymond G. Sanchez
Community Center, 9800 4th St. NW, Albuquerque, NM
87114. Attorneys will consult with individuals on a first-come,
first served basis.
We are looking for attorneys who specialize in the following areas:
Divorce
Custody
Landlord/Tenant
Bankruptcy
Creditor/Debtor
Child Support
Kinship/Guardianship
Wills/Probate
Power of Attorney
Public Benefits
Unemployment
Immigration
If you would like to volunteer, please register at
https://adobeformscentral.com/?f=LoGgwCf86dq29OZG0ZWzWw
For questions, please contact Aja Brooks
at (505)797-6040 or by e-mail at
[email protected]
HOPE ECKERT
Is gratefully accepting civil rights, employment discrimination,
wrongful termination, and tort claim referrals
I am also pleased to provide quality contract research and writing
services as well as serve as a GAL for settlements
Thank you for thinking of me!
505/466-6418
[email protected]
Walter M. Drew
Construc)on Defects Expert
40 years of experience
Construc)on-­‐quality disputes
between owners/contractors/
architects, slip and fall, building
inspec)ons, code compliance,
cost to repair, standard of care
(505) 982-­‐9797
[email protected]
505-480-8580; [email protected]
www.hopeeckertattorney.com
Office Spaces Available!
Downtown Albuquerque
• In the heart of Downtown
Business District
• Next to Federal Court Houses
• Many options to accommodate
your firm.
• ± 100 SF executive suites up
to ± 8,000 SF offices available.
Peterson Properties LLC (505) 884-3578
www.petersonproperties.net
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
35
No need for another associate
Bespoke lawyering for a new millennium
THE BEZPALKO LAW FIRM
Legal Research and Writing
(505) 341-9353
www.bezpalkolawfirm.com
MORNINGSTAR ENTERPRISES, LLC
MARIE SUSAN LEE, CPA MBA CFE
David Stotts
Attorney at Law
Business Litigation
Real Estate Litigation
FORENSIC ACCOUNTING
242-1933
(505) 235-3500 • [email protected]
www.morningstarcpa.com
Classified
Positions
13th Judicial District Attorney
Senior Trial Attorney, Assistant Trial
Attorney, Associate Trial Attorney
Cibola, Sandoval, Valencia Counties
Senior Trial Attorney - This position requires
substantial knowledge and experience in
criminal prosecution, rules of criminal procedure and rules of evidence, as well as the ability
to handle a full-time complex felony caseload.
Admission to the New Mexico State Bar and a
minimum of five years as a practicing attorney
are also required. Assistant Trial Attorney The 13th Judicial District Attorney’s Office is
accepting applications for an entry to mid level
attorney to fill the positions of Assistant Trial
Attorney. This position requires misdemeanor
and felony caseload experience. Associate Trial Attorney - an entry level position for Cibola
(Grants), Sandoval (Bernalillo) or Valencia
(Belen) County Offices. The position requires
misdemeanor, juvenile and possible felony
cases. Upon request, be prepared to provide a
summary of cases tried. Salary for each position is commensurate with experience. Send
resumes to Kathleen Colley, District Office
Manager, PO Box 1750, Bernalillo, NM 87004,
or via E-Mail to: [email protected].
Deadline for submission of resumes: Open
until positions are filled.
Trial Lawyer
GREAT PAY for a hungry, compassionate,
hard-working and successful trial lawyer who
wants to fight for injured plaintiffs. We need
someone with a track record of loyalty, tenacity, and successful results at trial. Less experienced lawyers will be considered if extremely
qualified and extremely motivated. See our
Mission Statement at www.ParnallLaw.com.
Email cover letter, resume, references, and
university and law school grade transcripts
to [email protected].
36
Attorney – Reproductive Freedom
Fellow
The American Civil Liberties Union (ACLU)
of New Mexico seeks a full-time Staff Attorney, based in Albuquerque. This position
will be focused on expanding reproductive
freedom in New Mexico as well as civil
rights litigation. For the full position announcement and how to apply: http://www.
aclu-nm.org/job-announcement-attorneyreproductive-freedom-fellowship/2014/11/
Position open until filled.
Alternative Dispute Resolution
Statewide Program Manager Position
The New Mexico Administrative Office of the
Courts is recruiting for a full-time, Alternative Dispute Resolution Statewide Program
Manager position. Hiring salary is $58,506 to
$69,476 Annually, DOE. Please visit the Job
Opportunities area of our web page at www.
nmcourts.gov for more information. Equal
Opportunity Employer
Executive Director –
NM Board of Bar Examiners
The Board of Bar Examiners is responsible
for administering the bar examination and
determining the character and fitness and
the eligibility for admission of all applicants
seeking admission to the bar in New Mexico.
The Executive Director provides management
and support for all aspects of the bar admissions process. The position is in Albuquerque,
NM. Managerial and administrative experience in a legal setting involving multiple complex issues is desired. Starting salary range is
$50,000 to $80,000 depending on experience.
Benefits will be negotiated. Transmit resume
and cover letter by e-mail to info@nmexam.
org or mail to 9420 Indian School Road NE,
Albuquerque, NM 87112. Deadline to apply is
February 13, 2015. A detailed job description
is on the Board’s website at www.nmexam.
org under “Contact Us”. The Board of Bar
Examiners is an equal opportunity employer.
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
Managing Attorney
Our Managing Attorney will manage 3 to 4
attorney-team leaders toward achieving very
challenging goals in several program areas;
engage in some program work; help lead the
organization and be directly responsible for
maintaining a very high level of excellence in
organizational performance. Requirements:
be an intellectual peer with some very smart
attorneys, adept at strategic and tactical planning, detail-oriented and well organized, a
highly competent advocate and litigator, and
a skilled manager. Must also have a law degree
with at least ten years experience in plaintiffs’ litigation (preferably civil rights) and
a demonstrated commitment to addressing
poverty and/or equal access to justice issues.
Preferred: experience with administrative
advocacy, familiarity with poverty law and
strong Spanish skills. Apply in confidence
by sending a letter of interest and resume to
[email protected] . EEOE. Learn
more at www.nmpovertylaw.org. Requirements: be an intellectual peer with some
very smart attorneys, adept at strategic and
tactical planning, detail-oriented and well
organized, a highly competent advocate
and litigator, and a skilled manager. Must
also have a law degree with at least ten years
experience in plaintiffs’ litigation (preferably
civil rights) and a demonstrated commitment
to addressing poverty and/or equal access
to justice issues. Preferred: experience with
administrative advocacy, familiarity with
poverty law and strong Spanish skills
Associate Attorney
Busy law firm practicing in the areas of Family
Law, Worker’s Compensation and Personal
Injury seeking Associate Attorney to immediately join our growing firm. Attorney will
primarily practice in the area of Family Law
and will be responsible for legal analysis, representation, document preparation, mediations and litigation. Salary will be consistent
with experience. Please submit cover letter
and resume to [email protected]. No
phone calls.
Experienced Attorney
Experienced attorney sought to assist with
Indian water rights litigation and related matters on behalf of Tribal clients of busy, small
law office in downtown Santa Fe. Contract
attorney or associate arrangement will be
considered. Compensation DOE. Please email
or fax cover letter, resumé, writing sample,
and reference list to janelle@jordan-lawfirm.
com, (505) 726-4689.
CLE Program Manager
State Bar of New Mexico seeks FT CLE
Program Manager. Successful applicant will
have project, financial, marketing and staff
management experience. Prior work in legal
field or adult education a plus. Compensation
$45,000 - $50,000 DOE. Email cover letter
and resume to [email protected], EOE.
Lawyer-A Position
Santa Fe
The NM Environment Department Office
of General Counsel seeks to fill a Lawyer-A
position in Santa Fe. This position requires a
Juris Doctorate and at least five (5) years of experience in the practice of law in one or more
of the following areas: administrative law,
drafting or review of contracts, rulemaking,
legislative affairs or representation of a public
agency. Appellate experience is preferred
and specialized knowledge in environmental law or natural resources law is desired.
Applicant must be licensed as an attorney
by the Supreme Court of New Mexico, be in
good standing and have no history of professional disciplinary actions, or applicant must
be qualified to apply for a limited practice
license, which requires graduation from an
accredited school of law, licensure (in good
standing) in another state and sitting for
the next eligible NM State Bar exam. Salary
ranges from $21.53/hr. to $37.46/hr. Previous
applicants must resubmit an application to be
considered for the position. To apply: access
the website for the NM State Personnel Office
(SPO), www.spo.state.nm.us and click on:
Apply for a State Job. The State of New Mexico
is an Equal Opportunity Employer.
Water & Environmental Law
Law & Resource Planning Associates, P.C.,
(“LRPA”), an AV-rated law firm, is accepting
resumes for an experienced, personable Attorney with strong academic and technical
credentials to work primarily in the area
of natural resource law. Competitive salary
commensurate with experience. Excellent
benefits package. All inquiries kept confidential. Please submit a cover letter, resume,
transcript(s), and writing samples to Hiring
Coordinator, LRPA, P.C., P.O. Box 27209
Alb., NM 87125 E-mail responses may be
submitted to J. Brumfield at [email protected]
Senior Trial Prosecutor/Assistant
District Attorney
The 12th Judicial District Attorney is seeking
a prosecutor for the Alamogordo and the Carrizozo office. Experienced preferred, but will
train the right candidate. Salary DOE. Please
send resume and cover letter via email to
[email protected] or [email protected].
nm.us. If you have any questions, please contact Joan Whiteley, Office Manager, for more
information at 575-437-3640. We are an EOE.
New Mexico Association of Counties
Litigation Attorneys
Non-profit local governmental association
with offices in Santa Fe and Albuquerque is
seeking dynamic, energetic in-house litigation attorneys for new legal bureau. Successful candidates shall have significant litigation experience. Background in handling
employment or civil rights matters a plus.
Opportunity to have impact on structure
and development of new in-house department. Will be responsible for defense of civil
rights matters and for providing counsel to
county members on employment and other
legal issues. Some travel required. Excellent
benefits package and working environment.
Email resume and references by COB Friday,
February 6, 2015 to [email protected].
Swaim & Finlayson, P.C.
Swaim & Finlayson, P.C., a busy Estate Planning firm in Albuquerque, is seeking an Associate Attorney with 3–7 years’ experience in
Estate Planning, Taxation, or Business Law to
join its team of highly skilled attorneys. Having an LLM in Tax or being a licensed CPA
may substitute for relevant experience. Swaim
& Finlayson, P.C. is a Martindale-Hubble A-V
rated law firm with a substantial Estate Planning, Taxation, and Business Transactions
practice. The law firm operates cooperatively,
meaning teamwork is paramount to its success. Associate Attorneys work alongside
the firm’s Partners and support staff and
also carry their own caseload. This position
will provide the successful applicant with
the opportunity to gain a wealth of practical
experience and to work independently and
directly with clients while benefiting from
the mentorship and experience of the firm’s
Partners. Swaim & Finlayson provides a
positive, supportive work environment for
its attorneys and support staff. The firm offers
a very competitive compensation package,
including excellent benefits and partnership
opportunities for exceptional associates.
Interested applicants should submit their
résumé at estateplannersnm.com.
Associate Attorney Position
Hoffman Kelley Lopez, insurance defense
firm with emphasis on Workers' Compensation, is seeking an associate attorney to join
our team. Applicant must be a graduate of an
accredited law school and licensed in NM.
Ideal candidate will be a highly motivated
self-starter that possesses excellent oral and
written communication skills, strong analytical ability and can work independently.
Deposition and/or courtroom experience is
a plus. In state travel is required. Benefits
available including health, dental and 401(k).
Email resume, writing sample and references
to [email protected] or fax to Hiring Partner at 800-787-9748.
Tribal Water Law Attorney Wanted
The Jicarilla Apache Nation is currently soliciting a law firm to provide the Nation legal
representation specific to its settled water
rights, adjudicated water rights, pending
adjudications, participating in national water
policy issues and contracts in association
to its water marketing program. Interested
parties can submit a letter of interest to the
Nation’s Office of General Council at darr.
[email protected]
Assistant District Attorney
The Fifth Judicial District Attorney’s office has an immediate position open to a
new or experienced attorney. Salary will be
based upon the District Attorney Personnel and Compensation Plan with starting
salary range of an Associate Trial Attorney
to a Senior Trial Attorney ($41,685.00 to
$72,575.00). Please send resume to Janetta
B. Hicks, District Attorney, 400 N. Virginia
Ave., Suite G-2, Roswell, NM 88201-6222 or
e-mail to [email protected].
Associate Attorney
Whitener Law Firm, P.A. is currently seeking a
full-time associate attorney to handle Personal
Injury cases. Candidates must be highly motivated, client oriented and will enjoy working
in a fast-paced environment. Candidates must
be licensed to practice in the state of New Mexico. Salary competitive and commensurate
to experience and qualifications. Please send
resume to Nichole Henry, Whitener Law Firm,
P.A., 4110 Cutler Avenue, N.E., Albuquerque,
NM 87110, fax to 505-242-3322 or e-mail to
[email protected]
Eleventh Judicial District
Attorney’s Office, Div II
The McKinley County District Attorney’s Office is currently seeking immediate resumes
for one (1) Senior Trial Attorney. Persons who
are in good standing with another state bar or
those with New Mexico criminal law experience in excess of 5 years are welcome to apply.
The McKinley County District Attorney’s
Office provides regular courtroom practice
and a supportive and collegial work environment. Enjoy the spectacular outdoors in the
adventure capital of New Mexico. Salaries are
negotiable based on experience. Submit letter
of interest and resume to Kerry Comiskey,
Chief Deputy District Attorney, 201 West
Hill, Suite 100, Gallup, NM 87301, or e-mail
letter and resume to [email protected].
nm.us by 5:00 p.m. February 13, 2015.
Family Law Attorney
Growing Albuquerque divorce firm with a
statewide practice needs an attorney who
sincerely wants to practice family law regularly appear in court. Send resume and salary
requirement to [email protected].
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
37
Attorneys Needed
1 requires litigation exp. for court hearings
&/or trials, mediations, discovery, mentoring
newer attorneys...2nd attorney, 0-3 yrs exp.
Must be able to multi-task in a high volume,
fast-paced, reputable, rapidly growing law
firm rep. numerous nationwide banking clients. Banking, Civil, and Bankruptcy exp. a
plus. Nice office in the Journal Center area &
great training program – be a part of our new
staff addition & building expansion! Join our
successful & growing firm, where promoting
positivity and friendly environment are essential to the role. Good benefits (hol, vac,
sick, health, dent, retir. & more). Submit in
conf. cover letter, resume, sal hist & req to
[email protected] Law School Graduates Recently Passing or Taking February Bar
Exam also Encouraged to Apply with possible
transition to Associate Attorney
Office of the State Engineer/
Interstate Stream Commission (OSE/
ISC) State of New Mexico
The Litigation & Adjudication Program seeks
two New Mexico licensed attorneys: Lawyer
Advanced to work in the Administrative
Litigation Unit to represent the Water Rights
Division in administrative hearings and the
State Engineer in appeals, enforcement actions, and other water rights administration
matters. The positions are located in Santa Fe.
Qualifications for Lawyer A: Juris Doctorate
from an accredited law school and 5 years of
relevant exp. Job ID #: Lawyer – A #201500206. Must apply on line at http://www.spo.
state.nm.us/ from 1/22/2015 to 2/5/2015. The
OSE/ISC is an Equal Opportunity Employer
Associate Attorney Position
Riley, Shane & Keller, P.A., an Albuquerque
AV-rated defense firm, seeks an Associate to
help handle our increasing case load. We are
seeking a person with one to five years experience. Candidate should have a strong academic background as well as skill and interest
in research, writing and discovery support.
Competitive salary and benefits. Please fax or
e-mail resumes and references to our office
at 3880 Osuna Rd., NE, Albuquerque, NM
87109 c/o Office Manager (fax) 505-883-4362
or [email protected]
Experienced Attorney
Albuquerque Business Law is seeking an
experienced attorney to join a growing law
firm. We are currently expanding and are
open to many practice areas. However, you
must be licensed to practice in the state of
New Mexico. The ideal candidate is a highly
motivated professional that can take initiative and work independently. If interested,
please send a cover letter, resume, and salary
requirements to [email protected].
38
Legal Secretary/Assistant
Civil litigation firm seeking Legal Secretary/
Assistant with minimum 3- 5 years’ experience, including knowledge of local court rules
and filing procedures. Excellent clerical, organizational, computer & word processing skills
required. Fast-paced, friendly environment.
Benefits. If you are highly skilled, pay attention to detail & enjoy working with a team,
email resume to: [email protected]
Paralegal
Litigation paralegal with background in
large volume document control/management, trial experience, and familiar with
use of computerized databases. This is an
opportunity for a highly motivated, task &
detail-oriented professional to work for an
established, well-respected downtown law
firm. Competitive benefits. Email resume to:
[email protected]
Legal Assistant
Chapman and Charlebois, a civil litigation
defense firm, is seeking a legal assistant
with 5+ years experience in civil litigation.
Extensive experience with practice management, calendaring, word processing, state and
federal court filings required. Must be highly
organized and detail oriented with good
customer service and multi-tasking skills.
Position needs include support for multiple
attorneys producing a high volume of work.
Email letter of interest with three professional
references, salary requirements and resume
to: [email protected].
Las Cruces Paralegal
Miller Stratvert PA is seeking a highly motivated and experienced litigation paralegal
with at least 3 years of relevant experience
for the Las Cruces Office. Excellent writing
and proofreading skills, legal terminology
proficiency, organizational skills, and MS
Word/Outlook/Adobe Acrobat proficiency
required. ProLaw experience preferred.
Self-motivation and the ability to work with
minimal supervision in a busy, fast-paced
environment is a must. Competitive salary,
excellent benefits and positive work environment. E-mail resume to cmanning@mstlaw.
com or call 505-842-1950.
Paralegal
Barudin Law Firm has an immediate opening
for an experienced paralegal with at least 8
years of litigation experience. We are an uptown plaintiff’s AV rated firm. Great benefits,
very interesting cases, and a supportive and
fun working environment. Must have experience with Odyssey, CM/ECF and be a true
self starter. Fax a resume and a list of references to 505-271-1888, or email to tbarudin@
barudinlaw.com.
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
Contract Legal Secretary or Paralegal
Family Law practice in Santa Fe seeking
contract PT legal secretary or paralegal.
Self-driven, strong work ethic, and positive
attitude required. Potential to become full
time with benefits. Email resume and salary
history to: [email protected].
Paralegal Position
Paralegal position, part-time, 25-30hrs/week.
Need smart person to interview potential
clients, file court pleadings electronically, and
help with trial preparation. Fluency in Spanish a
plus. Must be computer and Internet savvy. Not
for novices. Send resume w/ references via email
to [email protected].
Office Space
Taos Conference and Office Space
Taos conference and office space available
for depositions and mediations. Call Robyn
575-758-1225
Premier Office Space
available at 201 Third Street NW, Suite 500
– full service offices and cubicles complete
with reception, VoIP phones and phone line,
high-speed internet, free WiFi and conference room use. Amenities include covered
parking and Starbucks coffee service. Call
Sandee at 505.999.1726.
Professional Office space sublet
in Santa Fe:
Shared central services, including reception
and conference room. Rent $700 / mo. Contact Tom Simon 505-670-3007.
Well Established Law Office for Lease
Law Office established in 1993 for lease in
Rio Rancho, 1 block north of Intel. Approximately 1500 sf with 4 individual offices,
staff work stations, conference, file and copy
rooms, kitchen, restroom. Available with or
without furnishings. Practitioner is retiring.
Call Cathi at 505 891-3636.
Miscellaneous
Searching for Will
WILL for ROBERT E. RENDON in Santa Fe
county born 1939. Will was created around
2001-2005. Contact Krystal Chavez 505930-2685.
Attention Attorneys:
A $1,000 Finder’s Fee is being offered for
anyone who can produce a copy of a Last Will
and Testament for VIRGINIA D. BENOIT
prepared between 2000 and 2005. Contact
Roger Stansbury, Esq. 505-275-0017 or John
Benoit 513-254-8045.
e:
20 vert
Be 15 ising
nc - sa
Ad
M ve
h 20 les
ar rtis
& 1 no
ch ing
6 w
B
31 sp
a
, 2 ac
op
rD
01 e re
en
5 se
i
rv
re
fo
at
rt
io
c
n
t
he
o
de
ry
ad
lin
Ad
To make your space reservation,
please contact Marcia Ulibarri
505-797-6058 • [email protected]
Bar Bulletin - February 4, 2015 - Volume 54, No. 5
39
Wednesday, Feb. 18
4-6 p.m.
State Bar Center
5121 Masthead NE (Journal Center), Albuquerque
For more information or to RSVP, contact:
Marcia Ulibarri, 505.797.6058 or [email protected]
➤
➤
•
•
•
•
➤
nv
ite
wo
rki
ng
Ev
en
t
d!
se
Ho
u
C
an ome
Re d m an
al em d e
Br
Es b nj
ta er oy
th ing
te s o n
e
yo
De f N etw
Bu u
To
r
ve AI or
s
u
b
in
M ro
lo OP kin
es usi
ult u
pm - C g
s C ne
i-M r D
En
s
a
en om wit
s
i
joy
rd ca
ed git
tA m hy
Gi
Ex rd
ia al
ap
ve
c
ss erc ou
A
P
pe
ha an
ud rin
20 -a
oc i a r p
d
n
t
t
ito C
ize
ia l
ee
g
d
($4 15 -w
e
ro
ti o
riu en
rs
rs
T
F re 50 Ann ays
p
ab o
an
m ter
n
!
F
.
le. ff
.
d
an
re e Bu valu ual
at
re
em s e N
d
fre
i
)
A
o
n
.
ur
sh
IO
ee es
m
P
tin s p
Lu
en
g ac
nc
ts.
ro ka
om g
h
e
Tic
re .
ke
nt
t
al.
Ne
•
t
en
Op
Yo
u’r
ei