9/3 - State Bar

Transcription

9/3 - State Bar

September 3, 2014 • Volume 53, No. 36
Inside This Issue
Table of Contents..................................................... 3
Investiture Ceremony for
Judge Jennifer L. Attrep.......................................... 4
Vacancy on the Fifth Judicial District Court....... 4
Call for Nominations: ............................................ 5
Business Lawyer of the Year Award
Justice Pamela B. Minzner Outstanding
Advocacy for Women Award
Animal Talk Presentation Features
Rescued Wolf-Dogs................................................. 9
Thank You, Wills for Heroes Volunteers............ 10
Clerk’s Certificates................................................. 15
From the New Mexico Supreme Court
2014-NMSC-023, No. 33,604:
Ramirez v. State................................................. 19
2014-NMSC-024, No. 34,266:
State of New Mexico, ex rel. v. B&B
Investment Group, Inc..................................... 23
2014-NMSC-025, No. 33,589:
Zhao v. Montoya............................................... 32
State Theater by Rebecca Sitterly (see page 3)
CLE Planner
Live Program
The Law and Horses in New Mexico
Standard Fee: $239
Animal Law Section members, government, legal service attorneys,
and Paralegal Division members: $209
Co-sponsor: Animal Law Section
Moderator/Host: Judith Durzo, Esq., Animal Law Section Chair
8:30 a.m.
9 a.m.
9:10 a.m.
9:30 a.m.
10:15 a.m.
10:30 a.m.
11 a.m.
11:30 a.m.
Video Replays
12:15 p.m.
Registration
Overview of the Morning Presentations
Judith Durzo, Esq.
A Short History of Horse Issues in New Mexico
Gary King, Esq., New Mexico Attorney General
How the N.M. Animal Cruelty Law and
Disaster Law Treats Horses
Marsha Baum, Esq., Professor of Law, UNM
Break
Horse Racing in New Mexico
Sean Cunniff, Esq., Assistant Attorney General
The New Mexico Livestock Board
Allison Hedgecock, Esq., General Counsel,
New Mexico Livestock Board
Horses in the Legislature
Laura Bonar, Program Director, Animal Protection of
New Mexico
Lunch (provided at the State Bar Center)
1 p.m.
1:10 p.m.
2:15 p.m.
2:45 p.m.
3 p.m.
4 p.m.
4:15 p.m.
5 p.m.
also available via
LIVE WEBCAST
at the standard fee
Overview of Afternoon Programs
Judith Durzo, Esq.
Abused and Neglected Horses
Duane Adams, Vice President of Operations,
Dumb Friends League
Live Animal Export
Marsha Baum, Esq., Professor of Law, UNM
Break
Wild Horses in New Mexico: Current Issues
John Verheul, Esq., Co-founder and Director,
Sky Mountain Wild Horse Sanctuary
Free-roaming Horses in Placitas
Dave Reynolds, Esq.
Horses in Peril in New Mexico—
Panel Discussion and Q&A
Moderator: Judith Durzo, Esq; Panelists: all speakers
Adjournment
Tuesday, Sept. 9 • State Bar Center, Albuquerque
From Workers’ Compensation to Social Security:
Complementary Areas to Build Your Practice
5.5 G
9 a.m.-3 p.m.
$199
4th Annual ADR Institute
How Neuroscience Helps Mediators Resolve Conflict
6.0 G
9 a.m.-3:30 p.m.
$219
2014 Ethicspalooza: Proper Trust Accounting
1.5 EP
9-10:30 a.m.
$69
2014 Ethicspalooza:
Ethically Managing Your Practice
1.5 EP
2:30-4 p.m.
$69
Register online at www.nmbarcle.org
or call 505-797-6020.
CENTER FOR LEGAL EDUCATION
2
6.7 G
Friday, Sept. 12 • State Bar Center, Albuquerque
Bar Bulletin - September 3, 2014 - Volume 53, No. 36
Table of Contents
Officers, Board of Bar Commissioners
Erika Anderson, President
Martha Chicoski, President-Elect
J. Brent Moore, Vice President
Scotty A. Holloman, Secretary-Treasurer
Andrew J. Cloutier, Immediate Past President
Board of Editors
Ian Bezpalko, Chair Kristin J. Dalton
Jocelyn C. Drennan
Jennifer C. Esquibel
Bruce Herr
George C. Kraehe
Maureen S. Moore
Tiffany L. Sanchez
Mark Standridge
Joseph Patrick Turk
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • dwolohan@nmbar.org
Communications Coordinator
Evann Kleinschmidt
505-797-6087 • notices@nmbar.org
Graphic Designer Julie Schwartz
jschwartz@nmbar.org
Account Executive Marcia C. Ulibarri
505-797-6058 • mulibarri@nmbar.org
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2014, 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: address@nmbar.org. • www.nmbar.org
September 3, 2014, Vol. 53, No. 36
Notices .................................................................................................................................................................4
List of Court of Appeals’ Opinions...............................................................................................................8
Thank You, Wills for Heroes Volunteers................................................................................................... 10
Legal Education Calendar........................................................................................................................... 11
Writs of Certiorari .......................................................................................................................................... 13
Clerk’s Certificates.......................................................................................................................................... 15
Recent Rule-Making Activity...................................................................................................................... 18
Opinions
2014-NMSC-023, No. 33,604: Ramirez v. State........................................................................... 19
2014-NMSC-024, No. 34,266:
State of New Mexico, ex rel. v. B&B Investment Group, Inc................................................... 23
2014-NMSC-025, No. 33,589: Zhao v. Montoya.......................................................................... 32
Advertising....................................................................................................................................................... 39
State Bar Workshops
Meetings
September
September
3
Employment and Labor Law Section BOD,
Noon, State Bar Center
3
Divorce Options Workshop
6 p.m., State Bar Center
4
Health Law Section BOD,
9 a.m., via teleconference
3
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
10
Children’s Law Section BOD,
Noon, Juvenile Justice Center
4
Landlord Tenant Workshop
5:30 p.m., State Bar Center
10
Taxation Section BOD,
11 a.m., via teleconference
9
Civil Legal Clinic for Veterans
9 a.m.–noon, Raymond G. Murphy VA
Medical Center, SCI Meeting Room,
Albuquerque
11
Business Law Section BOD,
4 p.m., via teleconference
11
Elder Law Section BOD,
11
Public Law Section BOD,
Noon, Montgomery and Andrews, Santa Fe
12
Prosecutors Section BOD,
13
Wills for Heroes Workshop
8:30 a.m.–5 p.m.,
New Mexico Fire Expo, Socorro
16
Legal Resources for the Elderly Workshop
10–11:15 a.m., Presentation
12:30–3:30 p.m., Clinics
Silver City Senior Center, Silver City
16
Solo and Small Firm Section BOD,
11:30 a.m., State Bar Center
Cover Artist: Rebecca Sitterly’s acrylic and computer graphics works focus on fading movie marquees from the Great
Depression era—a particular genre of architecture whose spangled facades and glittering neon beckoned folks to
spend a dime on a ticket and forget their troubles in front of the silver screen. Sitterly served as a district court judge
and judge pro tem in Albuquerque from 1983 to 2005, and she continues to practice law today. Interested in disaster
response, she graduated from nursing school in 2010 and serves on the American Red Cross National Disaster Team and
the Medical Reserve Corps. For more information about Sitterly’s art, e-mail behka@aol.com.
Bar Bulletin - September 3, 2014 - Volume 53, No. 36 3
Notices
Court News
New Mexico Board of Legal
Specialization
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.
Family Law
Grace Duran
Roberta Batley
Federal Indian Law
Thomas Murphy
First Judicial District Court
Investiture Ceremony for
Judge Jennifer L. Attrep
The First Judicial District Court invites
the legal community to the investiture ceremony of Hon. Jennifer L. Attrep, Division
IX. The ceremony will take place at 4:30
p.m., Sept. 4, at the Steve Herrera Judicial
Complex, Ceremonial Courtroom, 225
Montezuma Ave., Santa Fe.
Second Judicial District Court
Reassignment of Cases
to Judge Nancy Franchini
Effective Aug. 18, Judge Nancy J.
Franchini was assigned civil court cases
previously assigned to Judge Ted C. Baca.
Pursuant to Supreme Court Rule 1-088.1
parties who have not yet exercised a peremptory excusal will have 10 days from
Sept. 17 to excuse Judge Franchini.
Fifth Judicial District Court
Announcement of Vacancy
A vacancy on the 5th Judicial District
Court exists in Lovington as of May
21, due to the creation of an additional
judgeship by the Legislature. This vacancy will be for a general jurisdiction
judge for Division XI. Inquiries regarding additional details or assignment of
this judicial vacancy should be directed
4
Professionalism Tip
With respect to parties, lawyers, jurors, and witnesses:
I will be considerate of the time constraints and pressures imposed
on lawyers by the demands of trial practice.
to the chief judge or the administrator
of the court. David Herring, chair of the
Judicial Nominating Commission, solicits applications for this position from
lawyers who meet the statutory qualifications in Article VI, Section 14 of the New
Mexico Constitution. Applications may
be obtained from the Judicial Selection
website: http://lawschool.unm.edu/judsel/application.php, or by calling Raylene
Weis at 505-277-4700. The deadline for
applications is 5 p.m., Sept. 8. Applicants
seeking information regarding election
or retention if appointed should contact
the Bureau of Elections in the Office
of the Secretary of State. The Judicial
Nominating Committee will meet at
1:30 p.m. on Sept. 11 at the Lea County
Courthouse, Courtroom #3, 100 N. Main
St., Lovington, to evaluate the applicants
for this position. The Committee meeting is open to the public.
Reassignment of Cases to
Judge Kea W. Riggs
Effective Sept. 15, a mass reassignment
of cases will occur pursuant to NMSC
Rule 23-109. Judge Kea W. Riggs will be
assigned all cases previously assigned to
Judge Charles C. Currier, Division VIII.
Pursuant to Supreme Court Rule 1-088.1,
parties who have not yet exercised a peremptory excusal will have 10 days from
Sept. 17 to excuse Judge Riggs.
11th Judicial District Court
Financial Notice
Effective Oct. 1, when a payment is
made that person authorizes the State of
New Mexico to either use information
from the check to make a one-time electronic fund transfer from the account or
to process the payment as a check transaction.
13th Judicial District Court
Reassignment of Cases Due to the
Appointment of Judge Manfredi
Effective Aug. 4, Judge Gina R. Manfredi was assigned all DM and DV cases
in the 13th Judicial District Court previously assigned to Judge John F. Davis.
Judge Davis will be assigned all CV cases
except a selection that will remain with the
current assigned judge. For a list of those
cases, refer to the Aug. 6, 2014 (Vol. 53,
No. 32), issue of the Bar Bulletin. All SI
and SQ cases previously assigned to Judge
Davis will be assigned to Judge George P.
Eichwald. All LR, PB, PQ and SA cases
previously assigned to Judge Davis will be
reassigned equally between Judge Louis
P. McDonald (all even-numbered cases)
and Judge Eichwald (all odd-numbered
cases). All new LR, PB, PQ and SA cases
filed will be assigned equally among Judge
McDonald and Judge Eichwald. Pursuant
to NMRA 1-088.1, parties who have not
yet exercised a peremptory excusal will
have until Sept. 11 to excuse the successor judge. For more information, contact
Chief Clerk Christal Bradford at 867-2376,
ext. 1123, or Leadworker Arlene Baca at
ext. 1148.
U.S. District Court,
District of New Mexico
Reappointment of Incumbent
U.S. Magistrate Judge Considered
The current term of office of U.S. Magistrate Judge Karen B. Molzen will expire
on April 25, 2015. The U.S. District Court
is required by law to establish a panel of
citizens to consider the reappointment of
the magistrate judge to a new eight-year
term. The duties of a magistrate judge
in this court include the following: (1)
conducting most preliminary proceedings
in criminal cases, (2) trial and disposition
of misdemeanor cases, (3) conducting
various pretrial matters and evidentiary
proceedings on delegation from a district
judge, and (4) trial and disposition of
civil cases upon consent of the litigants.
The panel invites comments regarding
the recommendation for reappointment
by the court. Comments should be addressed as follows: U.S. District Court,
CONFIDENTIAL—ATTN: Magistrate
Judge Merit Selection Panel, 333 Lomas
Blvd. NW, Suite 270, Albuquerque, NM
87102. Comments must be received by
Sept. 15.
www.nmbar.org
State Bar News
Attorney Support Groups
• Sept. 8, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, Room 1119 (The group
meets the second Monday of the month.)
• Sept. 15, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
• Oct. 6, 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 Bill
Stratvert, 505-242-6845.
Appellate Practice Section
Brown-bag Lunch with
Judge M. Monica Zamora
Have lunch with New Mexico Court of
Appeals Judge M. Monica Zamora at noon
on Friday, Sept. 5, at the State Bar Center.
The Appellate Practice Section is now
partnering with YLD on a joint brown-bag
lunch program for its members that provide an opportunity to meet with justices
and judges in an informal setting to talk
about issues facing New Mexico’s appellate
courts. Space is limited, so those interested
should R.S.V.P. to Dolph Barnhouse at
dbarnhouse@indiancountrylaw.com.
Judge Zamora was elected to the New
Mexico Court of Appeals in November
2012. She previously served as a District
Court judge in the Second Judicial District
Court. Judge Zamora was assigned to the
Children’s Court Division and served as
its presiding judge for five years. Prior to
her appointment to the District Court, she
practiced for more than 18 years as a civil
litigator. She also practiced in international
and domestic adoptions. Judge Zamora
graduated from the University of New
Mexico School of Law in 1987. She previously served as the chair of the Children’s
Court Rules Committee. Judge Zamora
currently serves on the New Mexico
Supreme Court’s Drug Court Advisory
Committee.
Business Law Section
Business Lawyer of the Year Award
The Business Law Section has issued
a call for nominations for the Business
Lawyer of the Year Award. Selection
criteria is available at http://www.nmbar.
org/AboutSBNM/sections/BusinessLaw/
bus_docs/criteriaforbusinesslawyeroft
heyear.pdf. Nominees do not have to be
section members, but membership is a
positive factor. Nominations are due by
Oct. 1 and should be submitted to D.D.
Wolohan, dwolohan@nmbar.org.
Committee on Women and the
Legal Profession
Seeking Nominations for
Justice Minzner Award
Nominations are now being accepted
for the 2014 Justice Pamela B. Minzner
Outstanding Advocacy for Women
Award. The award recognizes attorneys
who have distinguished themselves
during the prior year by providing legal
assistance to women who are underrepresented or underserved or by advocating
for causes that will ultimately benefit
and/or further the rights of women. The
Committee on Women and the Legal Profession will review the nominations and
select a recipient. Those who know of an
attorney whose work qualifies him or her
to receive this award should submit a letter of nomination summarizing the work
and efforts of the nominee to Michelle
Hernandez, PO Box 2168, Albuquerque,
NM 87103-2168, or mhernandez@
modrall.com. The nomination deadline
is Oct. 31.
Immigration Law Section
Call for Presentations at
Border Law Conference
The Immigration Law Section is presenting a session of the 2015 Border Law
Conference, organized by the El Paso
Federal Bar Association, and is seeking
proposals by Sept. 15. A presentation on
one of the following topics is requested:
“Immigration Relief Basics: How to
Come and Stay Lawfully,” “Representing Asylum-seekers in Criminal and
Immigration Cases,” “Lost in Procedures: Parole, Bond, Relief, Removal,”
“International Adoption,” “Immigration
Reform,” other complementary topics
or ethics. Email Section Chair Pamela
Munoz, Pamela.genghini0823@gmail.
com, for details. The conference will be
Jan. 30–31, 2015, at the University of
Texas at El Paso.
Intellectual Property Law
Section
Seeking CLE Presenters
The Intellectual Property Law Section
is looking for speakers for its annual Intellectual Property CLE on Dec. 4. Topics
Featured
Member Benefit
Fastcase is a free member service that
includes cases, statutes, regulations, court
rules, constitutions, and free live training
webinars. Visit www.fastcase.com/webinars
to view current offerings. Reference
attorneys will provide assistance from
8 a.m.–8 p.m. ET, M–F.
For more information, contact
Jorge Jimenez, jjimenez@nmbar.org or
505-797-6018.
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: address@nmbar.org
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
www.nmbar.org
include: work for hire, patent infringement, inter partes review, patent enforcement, and licensing and valuation. Other
topics involving patent and employment
law will be considered. Submit proposals to Kameron W. Kramer, kameron@
abqbizlaw.com as soon as possible.
New Mexico Commission
on Access to Justice
Meeting Notice
The next meeting of the Commission
on Access to Justice will be from noon–4
p.m., Sept. 5, at the State Bar Center. Interested parties from the private bar and
the public are welcome to attend. More
information about the Commission is
available on the State Bar’s website, www.
nmbar.org.
Paralegal Division
Luncheon CLE Series
The Paralegal Division invites members
of the legal community to bring a lunch
and attend “What the New Mexico Attorney General’s Consumer Protection
Division Does for You” (1.0 G) presented
by Josh Allison. The program will be held
from noon–1 p.m., Sept. 10, 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 Evonne Sanchez, 505222-9352. The program will be available
by teleconference to the State Bar Center
at three locations:
•Santa Fe: Montgomery & Andrews,
325 Paseo de Peralta, Santa Fe. Contact
Donna Ormerod, 505-986-2520.
•
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.
Solo and Small Firm Section
Presentation Features
Dean David Herring
The Solo and Small Firm Section
welcomes members to its monthly board
meetings at 11:30 a.m. at the State Bar
Center, followed by a speaker at noon.
On Sept. 16, UNM School of Law Dean
David Herring will present “Still the
Cutting Edge of Law School Education.” R.S.V.P. to Evann Kleinschmidt,
6
ekleinschmidt@nmbar.org, by Sept. 15
to guarantee lunch. Upcoming presentations include:
•Oct. 21: U.S. Attorney Damon Martinez
•Nov. 18: John Boyd, top litigator in New
Mexico (voter ID)
•Jan. 20, 2015: Nancy Hollander (national security vs. privacy)
•Feb. 17, 2015: Judge Harris Hartz10th
Circuit Court of Appeals
•March 17, 2015: Former U.S. Attorney
Greg Fouratt, head of the N.M. Department of Public Safety
Young Lawyers Division
Open House for Students, Lawyers
The State Bar is hosting its second annual Open House at the State Bar Center
with students from the UNM School of
Law, 5:30-7:30 p.m., on Sept. 9, and all
members are invited. The event is for
leaders of the State Bar and law students
to network and exchange information
about opportunities the various sections
offer students (e.g., attendance at section
CLEs, scholarships, writing competitions,
participation on section boards, etc.). Beverages and snacks will be provided. R.S.V.P.
to D.D. Wolohan, dwolohan@nmbar.org,
by Sept. 8.
Veterans Clinic Volunteers
Needed on Sept. 9
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 VA hospital.
Breakfast and orientation for volunteers
begin at 8:15 a.m. The next clinic is Sept.
9. No special training or certification
is required. Volunteers can give advice
and counsel in their preferred practice
area(s). Volunteers are needed in the
following practice areas: family, workers’
compensation, consumer, bankruptcy,
driver’s license restoration, labor/employment, landlord/tenant, veteran-specific,
and immigration. To volunteer, contact
Keya Koul, keyakoul@gmail.com.
Volunteers Needed for Two
Wills for Heroes Events
Volunteer attorneys and paralegals/
notaries are needed for two Wills for
Heroes events in September. Attorneys
prepare free wills for emergency first
responders. No extraordinary skills are
needed to volunteer. The first event will be
8:30 a.m. to 5 p.m., Saturday, Sept. 13, in
Socorro. Contact Robert Lara at robunm@
gmail.com. Half or full-day volunteers
are appreciated. The second event will
be at the State Fair, noon to 6 p.m., on
Wednesday, Sept. 17. Contact Spencer
Edelman at spencer.edelman@gmail.com
or 505-250-0410.
UNM
Law Library
Hours Through Dec. 13
Building & Circulation
Monday–Thursday 8 a.m.–10 p.m.
Friday
8 a.m.–6 p.m.
Saturday
8 a.m.–5 p.m.
Sunday
Noon–8 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–Sunday
Closed
Closures
Nov. 27–28: Thanksgiving
Other Bars
Albuquerque Lawyers Club
Lunch, Meet and Lecture Series
The Albuquerque Lawyers Club announces the beginning of its 2014–2015
lunch, meet and lecture series. Past
speakers include Mayor Richard Berry,
best-selling author Lee Maynard and
Captain David Iglesias. Membership
dues for the year are $300 for new
members and $250 for past members.
Dues will include 2 hours of ethics/professionalism CLE credit. The nine lunch
meetings are held at noon, on the first
Thursday of each month, Seasons Rotisserie & Grill in Old Town Albuquerque.
Non-members are welcome to attend at
a cost of $30 for the lunch and $35 per
CLE hour. The first meeting, a combined
lunch and two-hour ethics/professionalism CLE, will be held on Sept. 4. Lunch
will be served at 11:30 a.m., followed by
the CLE. Justice Charles W. Daniels and
Bob McNeill will be presenting. For more
information, contact Yasmin Dennig at
ydennig@Sandia.gov or 505-844-3558.
H. Vearle Payne American Inn
of Court
Accepting New Membership
Requests
The H. Vearle Payne American Inn
of Court in Albuquerque is currently accepting new membership requests from
attorneys and judges, active or retired,
for its 2014–2015 season that begins Sept.
9 and runs through May 12, 2015. The
www.nmbar.org
Inn meets on the second Tuesday of each
month, excluding December, for dinner
and discussions about pertinent topics.
Judges and practitioners in the Albuquerque and surrounding areas interested in
enhancing skills and networking should
send a letter of interest for more information to Administrator, H. Vearle Payne
American Inn of Court, PO Box 40577,
Albuquerque, NM 87196-0577, or email
hvpinnofcourt@q.com.
New Mexico Criminal Defense
Lawyers Association
Criminal Defense CLE in Las Vegas
The New Mexico Criminal Defense
Lawyers Association is sponsoring “Northeastern N.M. Regional CLE” (3.0 G, 1.0
EP) on Sept. 5 at the New Mexico Highlands University in Las Vegas. To register,
visit www.nmcdla.org.
Oliver Seth American
Inn of Court
Meeting Notice
The Oliver Seth American Inn of Court
meets on the third Wednesday of the
month from September to May. Meetings
address a pertinent topic and conclude
with dinner. Those who reside or practice
in Northern New Mexico and want to
enhance skills and network, send a letter of
interest to Hon. Paul J. Kelly Jr., U.S. Court
of Appeals - Tenth Circuit, PO Box 10113,
Santa Fe, NM 87504-6113.
Other News
Conference on the Link
Between Animal Abuse
and Human Violence
The connection between animal abuse
and human violence has been documented in numerous psychology, sociology
and criminology studies. The “2014 New
Mexico Conference on the Link Between
Animal Abuse and Human Violence”
(7.0 G) focuses on collaborative efforts to
identify and stop abuse, investigate cases
and provide proper treatment for abusers. The conference will be 8 a.m.–5 p.m.,
Sept. 22, at the National Hispanic Cultural
Center in Albuquerque. Animal Law Section members can attend the conference at
no cost. All other State Bar members can
attend the conference for $50. For more
information or to register, visit http://
www.thelinknm.com/conference.aspx.
New Mexico Workers’
Compensation Administration
New Mexico Lawyers
for the Arts
In accordance with NMAC 11.4.4.9
(P)–Forms, Filing and Hearing Procedures: Return of Records–the New Mexico
Workers’ Compensation Administration
will be destroying all mediation exhibits
filed in cases 1986–Aug. 15, 2014, in which
the recommended resolution has been
issued, excluding cases on appeal. The
exhibits are stored at 2410 Centre Ave SE,
Albuquerque, New Mexico, 87106. They
can be picked up until Sept. 30. For more
information, contact the WCA at 1-800255-7965 and ask for Dana Chavez, clerk
of the court. Exhibits not claimed by the
specified date will be destroyed.
Call for Attorneys for Film Clinic
New Mexico Lawyers for the Arts and
the Albuquerque Film Office will host a
pro bono legal and accounting clinic for
filmmakers and entertainment professionals from 10 a.m.–1 p.m. on Sept. 6 at
Hotel Andaluz in Albuquerque. Volunteer
attorneys and accountants are needed in
the following areas: setting up the corporation or LLC; copyright and trademark;
contract questions; employment questions;
drafting employment agreements for the
producer, director, actors and crew; executing releases and location agreements;
clearance issues; and accounting advice.
Those interested should contact Jose Garcia, go2garcia@gmail.com, and indicate
their time availability and practice areas.
Panel Discussion Series
New Mexico Lawyers for the Arts,
along with the city of Santa Fe Community Gallery, presents a series of panel
discussions addressing issues related to
the artist as entrepreneur. The final presentation is Sept. 17, “The Filmmaker as
Entrepreneur.” Events are free and open to
the public. For more information, contact
info@nmlawyersforthearts.org or visit
http://nmlawyersforthearts.org/?p=254.
Judge Padilla Reappointed
Leonard J. Padilla has been reappointed
to serve a five-year term as workers’ compensation judge. Workers’ compensation
judges are appointed for an initial one-year
term, which may then be followed by subsequent five-year appointments. For more
information, call Diana Sandoval-Tapia,
505-841-6052.
Destruction of Mediation Exhibits
Settlement Week
The New Mexico Workers’ Compensation Administration will host “Settlement
Week” Oct. 27–31. In past years, the event
has been successful in streamlining the
court dockets by either resolving claims
or moving claims closer to settlement.
In-person settlement conferences will be
held at the WCA offices in Albuquerque.
Parties in remote locations may participate
by telephone or by video from WCA field
offices in Farmington, Las Cruces, Las
Vegas, Lovington, Roswell and Santa Fe.
Parties wishing to have cases included in
Settlement Week should contact Beverly
Eschberger at 505-841-6089 or Beverly.
eschberger@state.nm.us.
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Wendy F. Jones, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925
Effective August 22, 2014
Published Opinions
No. 32674 5th Jud Dist Eddy CV-12-983, S SPOON v A MATA (affirm in part, reverse in part and remand)
8/18/2014
No. 33126 2nd Jud Dist Bernalillo CV-12-299, J DAMON v STRUCSURE HOME (reverse)
8/19/2014
Unublished Opinions
No. 33031 2nd Jud Dist Bernalillo JQ-12-32, CYFD v CORY L (affirm)
8/18/2014
No. 33188 2nd Jud Dist Bernalillo CV-10-7483, A RUDOLPH v MANOR ESTATES (remand)
8/18/2014
No. 33195 2nd Jud Dist Bernalillo CV-10-7483, A RUDOLPH v MANOR ESTATES (remand)
8/18/2014
No. 33571 2nd Jud Dist Bernalillo CV-13-935, ZIA TRUST v MOUNTAIN STATES (affirm)
8/18/2014
No. 33791 2nd Jud Dist Bernalillo DV-13-549, B MCDANIEL v A FULKS (affirm)
8/18/2014
No. 33636 11th Jud Dist San Juan LR-13-146-8, STATE v I HENDERSON (affirm)
8/19/2014
No. 33667 12th Jud Dist Otero CR-13-231, STATE v A RAMIREZ (affirm)
8/19/2014
No. 33140 5th Jud Dist Chaves JQ-11-27, CYFD v CYNTHIA D (affirm)
8/20/2014
No. 33638 3rd Jud Dist Dona Ana JQ-12-41, CYFD v LAURIE C (affirm)
8/21/2014
No. 33752 11th Jud Dist San Juan CR-13-380, STATE v R GILMORE (affirm)
8/21/2014
No. 32493 1st Jud Dist Santa Fe DV-09-474, W GOULD v P GOULD (reverse)
8/21/2014
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
8
www.nmbar.org
Animal Talk Features Rescued Wolf-Dogs
Vicki Hunt pets 5-year-old wolf-dog Milagro (part
huskie, wolf and Akita) during Stephanie Kaylan’s
presentation at the Animal Law Section’s August
Animal Talk. Kaylan, far left, brought two wolf-dogs
from her educational organization Wanagi Wolf Fund
and Rescue, which adopts the wolf-dogs. “My whole
cause is to stop the breeding of these wolf-dogs,” she
said. Her 501(c)3 pays to fix and care for the wolfdogs that otherwise would face euthanasia. Animal
Law Section Board member Guy Dicharry makes
a new friend in Milagro. The other wolf-dog at the
presentation was a huskie, wolf and coyote mix that
had been emaciated before the Wanagi organization
rescued it. The Animal Law Section hosts monthly
presentations on an animal law topic of interest to
the legal community. For details about the next talk,
e-mail Evann Kleinschmidt at ekleinschmidt@nmbar.
org, or look for an announcement in the Bar Bulletin.
We
ne
YO ed
U!
need you to volunteer to educate 5th graders about the Constitution.
Spend an hour or two in a classroom and inspire a child, Sept. 15-19.
(Teaching material available.)
To volunteer, contact:
• Albuquerque area, Spencer Edelman, spencer.edelman@gmail.com, 505-250-0410
• Santa Fe/Northern N.M., Joachim Marjon, info@marjonlaw.com, 505-954-1219
• Roswell/ Southeastern N.M., Tim Scheiderer, TScheiderer@da.state.nm.us, 575-622-4121, Ext. 15110
• Southern/Southwestern N.M., Erin Atkins, atkinser@gmail.com, 575-437-3042
• Farmington/Northwestern N.M., Sean FitzPatrick, sfitzpatrick@da.state.nm.us, 505-860-7209
YOUNG LAWYERS DIVISION
Wills for Heroes
The Young Lawyers Division would like to express its gratitude to the following volunteers for
generously giving their time and expertise to the Wills for Heroes event on Aug. 16 in Hobbs.
They prepared 31 wills for first responders.
Mark Baraibar
Efren A. Cortez
Scotty Holloman
Anita Jones (paralegal)
Kathleen A. Moran
Gary Don Reagan
The Hon. Mark Sanchez
Tim Scheiderer
Chelsea Seaton
Lea County Bar Association
This program would not be successful without our volunteers’ continued support!
YOUNG LAWYERS DIVISION
10
Legal Education
September
5
The Everyday Mentor: Internalizing
the Core Values of the Legal
Profession for Every Lawyer
2.0 EP
Live Seminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
5
Northeastern New Mexico
Regional CLE
3.0 G, 1.0 EP
Live Seminar
Lawyers Association
505-992-0050
www.nmcdla.org
9
From Workers’ Compensation to
Social Security: Complementary
Areas to Build Your Practice
5.5 G
Video Replay
505-797-6020
www.nmbarcle.org
94th Annual ADR Institute
How Neuroscience Helps Mediators
Resolve Conflict
6.0 G
Video Replay
505-797-6020
www.nmbarcle.org
9
2014 Ethicspalooza: Proper Trust
Accounting
1.5 EP
Video Replay
505-797-6020
www.nmbarcle.org
9
2014 Ethicspalooza: Ethically
Managing Your Practice
1.5 EP
Video Replay
505-797-6020
www.nmbarcle.org
9
UCC Toolkit: Promissory Notes
1.0 G
National Teleseminar
505-797-6020
www.nmbarcle.org
9
Annual Employment Law Update
6.0 G
Live Seminar
Northern NM Human Resources
Association
505-946-5862
www.nmmhra.shrm.org
10
UCC Toolkit: Letters of Credit
1.0 G
505-797-6020
www.nmbarcle.org
10
Vehicle Forfeiture Conference
4.7 G, 1.0 EP
Live Seminar
City of Santa Fe
505-955-6967
www.santafenm.gov
11
UCC Toolkit: Equipment Leases
1.0 G
505-797-6020
www.nmbarcle.org
11
Perspectives on Children in Court
3.0 G
Live Seminar
Advocacy Inc.
505-266-3166
www.nmadvocacy.org
12
The Law and Horses in New Mexico
6.7 G
Live Seminar and Webcast
505-797-6020
www.nmbarcle.org
16–17 Restructuring Failed Real Estate
Deals, Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
18
2014 Probate Institute
6.0 G, 1.0 EP
505-797-6020
www.nmbarcle.org
19
2014 Tax Symposium
7.0 G, 1.0 EP
505-797-6020
www.nmbarcle.org
19
Attorney Ethics When Starting a
New Law Firm
1.0 EP
Center for Legal Education of
NMSBF
505-797-6020
www.nmbarcle.org
22
Conference on the Link Between
Animal Abuse and Human Violence
7.0 G
Live Seminar
eSolved Inc.
505-410-3884
www.e-solved.com
23
The Brain-Smart Negotiator: Skills
and Practices for the Effective
Litigator
6.0 G
Video Replay
505-797-6020
www.nmbarcle.org
23
Solo and Small Firm Annual
Institute What You Don’t Know
Can Hurt You!
3.5 G, 2.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
23
Navigating the Privileges Minefield
5.5 G
Video Replay
505-797-6020
www.nmbarcle.org
23
2014 Ethicspalooza: Conflicts of
Interest
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
11
Legal Education
www.nmbar.org
September
23
Understanding and Modifying
Fiduciary Duties in LLCs
1.0 G
505-797-6020
www.nmbarcle.org
24
Drafting Escrow Agreements in
Business and Real Estate
1.0 G
505-797-6020
www.nmbarcle.org
26
Positive Psychology for Lawyers—
Neuroscience and the Lawyer’s
Brain
3.0 EP
Live Seminar
505-797-6020
www.nmbarcle.org
26
14
Criminal Issues in Immigration
Law
5.5 G
Video Replay
505-797-6020
www.nmbarcle.org
14
2014 Americans with Disabilities
Act Update
1.0 G
505-797-6020
www.nmbarcle.org
14
15
Keeping Current Symposium
6.0 G
Live Seminar
Society of Financial Service
Professionals-NM-West TX Chapter
505-821-7130
October
2
Asset Protection for Real Estate
1.0 G
505-797-6020
www.nmbarcle.org
3
2014 Employment and
Labor Law Institute
4.5 G, 1.5 EP
505-797-6020
www.nmbarcle.org
7–8
Inter-species Conversions and
Mergers, Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
9
Police Misconduct: Understanding
§1983 Civil Rights Actions
3.0 G
505-797-6020
www.nmbarcle.org
14
The 29th Annual Bankruptcy Year
in Review Seminar
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
12
11th Annual Spring Elder Law
Institute: Current Medical
Developments Every Elder Law
Attorney Should Know
2.5 G
Video Replay
505-797-6020
www.nmbarcle.org
14
2014 Ethicspalooza: The Ethics of
Social Media Use
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
14
2014 Ethicspalooza: Charging a
Reasonable Fee
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
Incentive Trusts in Estate Planning:
Promise and Peril
1.0 G
505-797-6020
www.nmbarcle.org
16
Advanced Oil and Gas Energy
Resources
11.2 G, 1.5 EP
Video Replay
State Bar of Texas
512-427-1426
www.texasbarcle.com
17
New Mexico Administrative Law
Institute 2014
4.2 G, 2.0 EP
505-797-6020
www.nmbarcle.org
21
Skeptically Determining the Limits
of Scientific Evidence V
5.0 G, 1.5 EP
Video Replay
505-797-6020
www.nmbarcle.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
Petitions for Writ of Certiorari Filed and Pending:
No. 34,864
No. 34,863
No. 34,862
No. 34,847
No. 34,861
No. 34,860
No. 34,859
No. 34,853
No. 34,854
No. 34,851
No. 34,848
No. 34,796
No. 34,850
No. 34,845
No. 34,843
No. 34,842
No. 34,838
No. 34,800
No. 34,834
No. 34,830
No. 34,819
No. 34,812
No. 34,807
No. 34,801
No. 34,797
No. 34,777
No. 34,790
No. 34,765
No. 34,793
No. 34,778
No. 34,726
No. 34,775
No. 34,776
No. 34,748
No. 34,760
No. 34,731
No. 34,728
No. 34,739
No. 34,706
No. 34,615
Date Petition Filed
Stills v. State
12-501 08/21/14
State v. Hermosillo
COA 32,891 08/21/14
Whatley v. Williams
12-501 08/20/14
State v. Gerlinda C.
COA 33,537 08/19/14
State v. Matthews
COA 33,591 08/18/14
State v. Lopez
COA 33,488 08/18/14
Hacessa v. Janecka
12-501 08/15/14
State v. Quintana
COA 33,306 08/14/14
State v. Alex S.
COA 32,836 08/13/14
State v. McClintock
COA 31,425 08/11/14
Polk v. Aubrey
COA 32,297/32,427 08/08/14
Miller v. Ortiz
12-501 08/08/14
State v. Miller
COA 29,244 08/07/14
Hobson v. Hobson
COA 33,674 08/07/14
State v. Lovato
COA 32,361 08/06/14
State v. Flores-Soto
COA 33,542 08/05/14
Gabaldon v. Quintana
COA 33,028 08/04/14
Metoyer v. Barncastle
COA 33,410 08/04/14
SF Pacific Trust v.
City of Albuquerque
COA 30,930 07/30/14
State v. Mier
COA 33,493 07/25/14
Response ordered; due 9/8/14
McGhee v, State
12-501 07/17/14
Ruiz v. Stewart
12-501 07/11/14
Hernandez v. Ortiz
12-501 07/07/14
Beserra v. N.M. Taxation &
Revenue Dept.
COA 33,641 07/07/14
Weiss v.
Board of Education
COA 32,844 07/03/14
State v. Dorais
COA 32,235 07/02/14
Response filed 7/31/14
Venie v. Velasquz
COA 33,427 06/27/14
Helfferich v. Frawner
12-501 06/24/14
Isbert v. Nance
12-501 06/23/14
Tecolote Land v. Montoya COA 32,275 06/23/14
Deutsche Bank v.
Johnson
COA 31,503 06/23/14
State v. Merhege
COA 32,461 06/19/14
Serna v. Franco
12-501 06/13/14
Smith v. State
12-501 06/06/14
Royal v. Stewart
12-501 06/03/14
Helfferich v. Frawner
12-501 05/29/14
Martinez v. Bravo
12-501 05/29/14
Holguin v. Franco
12-501 05/21/14
Camacho v. Sanchez
12-501 05/13/14
Dominguez v. Bravo
12-501 05/12/14
No. 34,691
No. 34,668
No. 34,633
No. 34,589
No. 34,574
No. 34,571
No. 34,604
No. 34,563
No. 34,560
No. 34,289
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Wetson v. Nance
12-501
Response ordered; filed 7/14/14
State v. Vigil
COA 32,166
Vespender v. Janecka
12-501
Seager v. State
12-501
Montano v. Hatch
12-501
Fresquez v. State
12-501
Lopez v. State
12-501
Benavidez v. State
12-501
Hartzell v. State
12-501
Tafoya v. Stewart
12-501
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Utley v. State
12-501
05/07/14
04/29/14
04/29/14
04/23/14
04/21/14
04/07/14
03/21/14
02/25/14
02/11/14
08/23/13
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) No. 33,725 State v. Pasillas
No. 33,837 State v. Trujillo
No. 33,877 State v. Alvarez
No. 33,930 State v. Rodriguez
No. 33,994 Gonzales v. Williams
No. 33,863 Murillo v. State
No. 33,810 Gonzales v. Marcantel
No. 34,311 State v. Favela
No. 34,363 Pielhau v. State Farm
No. 34,274 State v. Nolen
No. 34,398 State v. Garcia
No. 34,400 State v. Armijo
No. 34,498 Hightower v. State
No. 34,488 State v. Norberto
No. 34,487 State v. Charlie
No. 34,443 Aragon v. State
No. 34,516 State v. Sanchez
No. 34,473 Mandeville v.
Presbyterian Healthcare
No. 34,548 State v. Davis
No. 34,558 State v. Ho
No. 34,549 State v. Nichols
No. 34,526 State v. Paananen
No. 34,522 Hobson v. Hatch
No. 34,582 State v. Sanchez
Date Writ Issued
COA 31,513 09/14/12
COA 30,563 11/02/12
COA 31,987 12/06/12
COA 30,938 01/18/13
COA 32,274 08/30/13
12-501 08/30/13
12-501 08/30/13
COA 32,044 10/18/13
COA 31,899 11/15/13
12-501 11/20/13
COA 31,429 12/04/13
COA 32,139 12/20/13
12-501 02/07/14
COA 32,353 02/07/14
COA 32,504 02/07/14
12-501 02/14/14
COA 32,994 02/14/14
COA 32,999
COA 28,219
COA 32,482
COA 30,783
COA 31,982
12-501
COA 32,862
03/07/14
03/14/14
03/21/14
03/28/14
03/28/14
03/28/14
04/11/14
13
Writs of Certiorari
No. 34,644
No. 34,637
No. 34,613
No. 34,607
No. 34,554
No. 34,476
No. 34,694
No. 34,669
No. 34,650
No. 34,630
No. 34,764
No. 34,789
No. 34,769
No. 34,786
No. 34,784
No. 34,805
No. 34,798
Valenzuela v. Snyder
COA 32,680
State v. Serros
COA 31,975
Ramirez v. State
COA 31,820
Lucero v.
Northland Insurance
COA 32,426
Miller v. Bank of America COA 31,463
State v. Pfauntsch
COA 31,674
State v. Salazar
COA 33,232
Hart v. Otero County Prison 12-501
Scott v. Morales
COA 32,475
State v. Ochoa
COA 31,243
State v. Slade
COA 32,681
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
05/01/14
05/01/14
05/01/14
05/01/14
05/01/14
05/01/14
06/06/14
06/06/14
06/06/14
06/06/14
08/01/14
08/01/14
08/01/14
08/01/14
08/01/14
08/15/14
08/15/14
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 33,382 N.M. Human Services v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,383 Presbyterian Health Plan v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,384 Cimarron Health Plan v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,632 First Baptist Church of Roswell v.
Yates Petroleum
COA 30,359 03/13/13
No. 33,548 State v. Marquez
COA 30,565 04/15/13
No. 33,971 State v. Newman
COA 31,333 07/24/13
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. 33,770 Vaughn v.
St. Vincent Hospital
COA 30,395 08/26/13
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
No. 34,013 Foy v. Austin Capital
COA 31,421 11/14/13
No. 34,085 Badilla v. Walmart
COA 31,162 12/04/13
No. 34,146 Madrid v.
Brinker Restaurant
COA 31,244 12/09/13
14
No. 34,128
Benavides v.
Eastern N.M. Medical
COA 32,450
No. 34,093 Cordova v. Cline
COA 30,546
No. 34,194/34,204
King v. Faber
COA 34,116/31,446
No. 33,999 State v. Antonio T.
COA 30,827
No. 33,997 State v. Antonio T.
COA 30,827
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297
No. 34,120 State v. Baca
COA 31,442
No. 34,583 State v. Djamila B.
COA 32,333
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 N.M. Dept. Workforce
Solutions v. Garduno
COA 32,026
No. 34,387 Perea v. City of
Albuquerque
COA 31,605/32,050
No. 34,271 State v. Silvas
COA 30,917
No. 34,365 Potter v. Pierce
COA 31,595
No. 34,455 City of Santa Fe v.
Tomada
COA 32,407
No. 34,435 State v. Strauch
COA 32,425
No. 34,447 Loya v. Gutierrez
COA 32,405
No. 34,295 Dominguez v. State
12-501
No. 34,300 Behrens v. Gateway
COA 31,439
No. 34,501 Snow v. Warren Power
COA 32,335
12/18/13
01/15/14
02/24/14
02/26/14
02/26/14
03/26/14
03/26/14
07/29/14
08/11/14
08/11/14
08/13/14
08/13/14
08/25/14
08/25/14
08/25/14
08/27/14
08/27/14
08/27/14
09/24/14
09/29/14
10/01/14
Opinion on Writ of Certiorari:
No. 33,592
No. 33,483
State v. Montoya
State v. Consaul
Date Opinion Filed
COA 30,470 08/21/14
COA 29,559 08/21/14
Petition for Writ of Certiorari Denied:
No. 34,821
No. 34,831
No. 34,827
No. 34,809
No. 34,799
No. 34,794
No. 34,705
Martinez v. Frawner
State v. Barnhouse
State v. Dylan J.
State v. Sosa
State v. Araujo
State v. Reyes
State v. Carlos C.
Date Order Filed
12-501 08/21/14
COA 33,351 08/20/14
COA 31,274 08/20/14
COA 32,577 08/20/14
COA 33,206 08/20/14
COA 33,479 08/20/14
COA 33,233 08/20/14
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Clerk’s Certificate
of Withdrawal
Effective August 3, 2014:
Linda S. Auwers
2029 Connecticut Ave. NW,
Apt. 43
Washington, DC 20008
Thomas K. Campbell II
PO Box 37229
Albuquerque, NM 87176-7229
Crawford R. Catterton
231st District Court of Texas
200 E. Weatherford St.
Fort Worth, TX 76196
George Cherpelis
9202 North 83rd Place
Scottsdale, AZ 85258
John Patrick Gascoyne
718 W. Mountain Avenue
Fort Collins, CO 80521
Allen S. Kenyon
28 Fermin Chavez Road
Belen, NM 87002
Thomas G. Scarvie
3463 State Street, Suite 267
Santa Barbara, CA 93105
Jonathan A. Torres
1180 Spring Centre S. Blvd.,
Suite 355
Altamonte Springs, FL 32714
Eugene William Weisfeld
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of Change to
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Saul Cohen
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of Name Change
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Barbara M. Evans f/k/a
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Atwood, Malone, Turner &
Sabin, PA
PO Drawer 700
400 N. Pennsylvania Ave.,
Suite 1100 (88201)
Roswell, NM 88202-0700
575-622-6221
bsmith@atwoodmalone.com
of Indefinite
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Membership in the
State Bar of
New Mexico
Alain Jackson
423 Sixth Street NW
Albuquerque, New Mexico
87102
of Name, Address,
and/or Telephone
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Hilary John Andoe Arathoon
(andoe@lawaccess.org;
phone ext. 113)
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The firm name, address, and
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Law Access New Mexico
PO Box 36539
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Santa Fe, NM 87502-4074
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Michael J. Canon, PC
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New Mexico State University
PO Box 30001, MSC 3UGC
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575-646-3012 (fax)
lellis@nmsu.edu
15
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Rose L. Brand &
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The Fischer Law Firm
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Odessa, TX 79761
432-333-3900
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Pierce County Juvenile Court
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Tacoma, WA 98406
253-798-7338
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Cherylinn Gunning
Law Offices of the Public
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505 Marquette Avenue NW,
Suite 120
505-369-3600
Cherylinn.Gunning@
lopdnm.us
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Office of the U.S. Attorney
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Stephanie Yvette Lopez
Office of the City Attorney
3200 Civic Center Circle NE,
Suite 400
Rio Rancho, NM 87144
505-896-8385
slopez@ci.rio-rancho.nm.us
16
http://nmsupremecourt.nmcourts.gov.
Anthony Michael Maestas
Law Offices of the
Public Defender
211 N. Canal Street
Carlsbad, NM 88220
575-887-0224
anthony.maestas@lopdnm.us
Hon. Gina R. Manfredi
Thirteenth Judicial District
Court
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Bernalillo, NM 87004-0600
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Templeman & Indall LLP
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141 E. Palace Avenue,
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Office of the State Court
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co.us
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Law Office of Thomas R. May
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PO Box 6621
rmertz159@gmail.com
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Cook County State’s
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Chicago, IL 60643
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Law Office of
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Morales Law Office
3600 Rodeo Lane, Suite B-3
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Yates Petroleum Corporation
105 S. 4th Street
Artesia, NM 88210
575-748-4349
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cmoran@yatespetroleum.com
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1981 Idlywild Road
Phoenix, AZ 86305
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MSC11 6070
1 University of New Mexico
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Office of the First Judicial
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ACLU of New Mexico
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Slade Law Firm
5101 College Blvd., #5057
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Office of the
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PO Box 1508
408 Galisteo Street (87501)
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PO Box 342
Valdez, NM 87580-0342
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Office of the Thirteenth
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of Reciprocal
Discipline
Effective April 17, 2014:
Andrea Christman
132 Lisbon Avenue SE
Rio Rancho, NM 87124
or
2025 Rio Grande
Boulevard NW
of Reinstatement
to Active Status
As of August 18, 2014:
Richard J. Deaguero
5001 Spring Valley Road,
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and
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In Memoriam
As of May 9, 2014:
Craig B. Fretwell
2536 Ridge Runner Road
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407 Seventh Street NW
http://nmsupremecourt.nmcourts.gov.
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PO Box 1738
Lubbock, TX 79408-9408
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11901 Caribou Avenue NE
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408 La Florida Drive
Canutillo, TX 79835
915-599-0149
Christopher.ryan55At@
outlook.com
and
705 Calle Beatrice
Santa Fe, NM 87501
of Withdrawal
Effective June 8, 2014:
N. Jean Fischer
8 Upper San Pedro Road
Española, NM 87532
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9612 Tanoan Drive NE
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As of July 21, 2014:
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2945 Fondren
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of Disbarment
On August 20, 2014:
Paul Livingston
PO Box 250
Placitas, New Mexico
84043-0250
505-771-4000
of Correction
The clerk’s certificate dated
July 23, 2014, has an incorrect middle initial shown for
the following attorney and
should be as follows:
Charles C. McLeod Jr.
U.S. Marine Corps
11427 Newgate Crest Drive
Riverview, FL 33579
of Change to
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3715 E. Piute Avenue
Phoenix, AZ 85050
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1216 Montana Avenue
El Paso, TX 79902
and
718 Myrtle
El Paso, TX 79901
17
Recent Rule-Making Activity
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PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective September 3, 2014
Pending Proposed Rule Changes Open for
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Recently Approved Rule Changes
Since Release of 2014 NMRA:
Effective Date
Children’s Court Rules and Forms
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10-317
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18
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Opinion Number: 2014-NMSC-023
MARTIN RAMIREZ, a/k/a RICHARD G. SANCHEZ, JR.,
Petitioner-Respondent,
v.
STATE OF NEW MEXICO,
Respondent-Petitioner
No. 33,604 (filed June 19, 2014)
ORIGINAL PROCEEDING ON CERTIORARI
ALAN M. MALOTT, District Judge
GARY K. KING
Attorney General
WILLIAM H. LAZAR
Assistant Attorney General
M. VICTORIA WILSON
Santa Fe, New Mexico
for Petitioner
DANE ERIC HANNUM
for Respondent
REBECCA KITSON
REBECCA KITSON LAW
Opinion
Edward L. Chávez, Justice
{1}In State v. Paredez, 2004-NMSC-036,
¶ 19, 136 N.M. 533, 101 P.3d 799, we held
that a criminal defense attorney who represents a noncitizen client “must advise
that client of the specific immigration consequences of pleading guilty” to pending
charges. An attorney’s failure to do so will
be ineffective assistance of counsel if the
client is prejudiced. Id. Ramirez pleaded
CHRISTOPHER N. LASCH
UNIVERSITY OF DENVER STURM
COLLEGE OF LAW
Denver, Colorado
for Amici Curiae
Professors Barbara Bergman,
Barbara Creel, Rebecca Kitson, and
Jennifer Moore and the National
Immigration Project of the National
Lawyers Guild
SCOTT M. DAVIDSON
THE APPELLATE LAW OFFICE OF
SCOTT M. DAVIDSON, PH.D., ESQ.
for Amicus Curiae
Lawyers Association
guilty in 1997 and now asserts that his
attorney did not advise him about any immigration consequences of his pleas. The
question in this case is whether our holding in Paredez applies retroactively and, if
it does, whether Ramirez has a claim for
ineffective assistance of counsel that could
justify withdrawal of his pleas.
{2}We hold that Paredez applies retroactively to 1990, the year that this Court
began to prohibit courts from accepting
a guilty plea from a defendant without
fulfilling the following requirements: the
court must (1) ascertain that the defendant
understood that a conviction may have
an effect on the defendant’s immigration
status; (2) obtain an affidavit from the defendant that the judge personally advised
the defendant of the possible effect of a
conviction on the defendant’s immigration
status; and (3) obtain a certification from
the defendant’s attorney that the attorney
had conferred with the defendant and
explained in detail the contents of the affidavit signed by the defendant. See Form
9-406 NMRA (1990); Rule 5-303(E)(5)
NMRA (1990); Rule 6-502(D)(2) NMRA
(1990); Rule 7-502(E)(2) NMRA (1990);
& Rule 8-502(D)(2) NMRA (1990). These
requirements were not new in 1997 at the
time Ramirez pleaded guilty, and they
were “designed to ensure a guilty plea
is made knowingly and voluntarily.” See
State v. Garcia, 1996-NMSC-013, ¶ 8, 121
N.M. 544, 915 P.2d 300 (stating that “New
Mexico has long recognized that for a
guilty plea to be valid it must be knowing
and voluntary”).
BACKGROUND
{3}On January 4, 1997, Martin Ramirez
was arrested and charged with possession
of up to one ounce of marijuana and two
other misdemeanors, contrary to NMSA
1978, Section 30-31-23(B)(1) (1990,
amended 2011) (possession of up to one
ounce of marijuana); NMSA 1978, Section
30-31-25.1 (1981, amended 2001) (possession of drug paraphernalia); and NMSA
1978, Section 30-22-3 (1963) (concealing
identity), respectively. He appeared in
metropolitan court for a custody arraignment two days later and pleaded guilty to
all three charges on the advice of his public
defender. In 2009, Ramirez learned that
his guilty pleas in 1997 rendered him “inadmissible to the United States.”1 Ramirez
filed a petition for writ of error coram nobis in the district court, seeking to vacate
his metropolitan court guilty pleas on the
basis of ineffective assistance of counsel.
Ramirez’s undisputed contentions are that
he first met with his attorney right before
1 The United States Citizenship and Immigration Services (USCIS), which operates under the Department of Homeland Security,
sent Ramirez its decision on his application for waiver of grounds of inadmissability on June 22, 2009. In its decision, USCIS cited
Section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (8 U.S.C. § 1182(a)(2)(A)(i)(II)) to inform Ramirez that his pleas
of “guilty” to the charges of possession of marijuana and other misdemeanors fell within the scope of immigration and citizenship
disqualifications, or inadmissibility. The USCIS decision also explained why the discretionary power of the Attorney General to
waive inadmissibility was not granted to Ramirez, despite the fact that he established that he has a child who is a United States citizen,
whom he would be forced to leave behind.
19
Advance Opinions
his arraignment and that the attorney advised him that if he pleaded guilty to the
charges, which he did, his sentence would
be to time already served. Also apparently
uncontested is Ramirez’s assertion that
his attorney never advised him about any
immigration consequences of his guilty
pleas, which was in direct conflict with the
requirement that Form 9-406 (1990) be
completed by the judge, the defendant, and
the defendant’s attorney if the defendant
was represented by counsel. Form 9-406(9)
(1990) required the judge to certify nine
facts, including “[t]hat the defendant understands that a conviction may have an
effect upon the defendant’s immigration or
naturalization status.” Form 9-406 (1990)
also required the defendant as an affiant
to certify under oath that the judge had so
advised the defendant. Finally, Form 9-406
(1990) required the defendant’s attorney to
certify “that [the attorney] has conferred
with [the attorney’s] client with reference
to the execution of [the] affidavit and that
[the attorney] has explained in detail its
contents.”
{4} We cannot determine from the record
before us whether Form 9-406 (1990) was
filed in this case because Ramirez’s case
files from both the metropolitan court and
the public defender department were destroyed prior to the present appeal. Nonetheless, we presume that guilty plea Form
9-406 (1990) was properly utilized. See Doe
v. City of Albuquerque, 1981-NMCA-049,
¶ 8, 96 N.M. 433, 631 P.2d 728 (“[W]e will
indulge all presumptions in favor of the
correctness of the procedures in the trial
court.”).
{5}During the hearing regarding
Ramirez’s petition to set aside his guilty
pleas, Ramirez’s counsel stated that had
Ramirez known about the immigration
consequences of his guilty pleas, “he would
not have taken that step at that point.” The
Court stated that all parties were in agreement regarding Ramirez’s contentions,
and the State did not disagree. The court
accepted as true Ramirez’s allegation that
he would not have entered guilty pleas
in his misdemeanor charges had his attorney advised him of the immigration
consequences. However, the court denied
Ramirez’s writ, reasoning that Paredez did
not apply retroactively.
{6} On appeal, the Court of Appeals held
that Paredez and its federal corollary,
Padilla v. Kentucky, 559 U.S. 356, 359-60
(2010) (holding that the Sixth Amendment guarantee of effective assistance of
counsel requires a defendant’s attorney to
20
advise the defendant that pleading guilty
to charges of transporting marijuana
would result in deportation), apply retroactively in the State of New Mexico. State
v. Ramirez, 2012-NMCA-057, ¶ 16, 278
P.3d 569. We granted the State’s petition
for writ of certiorari. Since we granted
the State’s petition, the United States Supreme Court filed its opinion in Chaidez
v. United States, ___ U.S. ___, 133 S. Ct.
1103 (2013), which stated that its holding
in Padilla should not apply retroactively in
federal courts because Padilla announced
a new rule of criminal procedure. Id. at
___, 133 S. Ct. at 1107-08. We decline to
follow Chaidez and we affirm the Court
of Appeals because since 1990, the New
Mexico Supreme Court rules and forms
have required an attorney to certify having
engaged the client in detail in a guilty plea
colloquy that included immigration consequences. Because the requirements that
Form 9-406 imposes are not new in New
Mexico, our holding in Paredez imposing
requirements that were effective in 1990
applies retroactively to 1990, the adoption
date of the Form 9-406 amendment that
required a defendant to understand the
possible immigration consequences of a
plea conviction.
DISCUSSION
{7}In Paredez, we held that criminal
defense attorneys must determine the immigration status of their clients and must
advise the client who is not a United States
citizen specifically regarding the immigration consequences of a guilty plea, including whether the guilty plea is virtually
certain to result in the client’s deportation.
2004-NMSC-036, ¶ 19. Three key reasons
motivated our holding. First, “[d]eportation can often be the harshest consequence
of a non-citizen criminal defendant’s guilty
plea, so that ‘in many misdemeanor and
low-level felony cases . . . [he or she] is
usually much more concerned about
immigration consequences than about the
term of imprisonment.’ ” Id. ¶ 18 (second
alteration and omission in original) (quoting Jennifer Welch, Comment, Defending
Against Deportation: Equipping Public
Defenders to Represent Noncitizens Effectively, 92 Cal. L. Rev. 541, 545 (2004)).
Second, “requiring . . . such advice is
consistent with the spirit of [the 1992
predecessor to Rule 5-303(E)(5)], which
prohibits the district court from accepting
a guilty plea without first determining
that the defendant has an understanding
of the immigration consequences of the
plea.” Paredez, 2004-NMSC-036, ¶ 19.
Forms 9-406 (applicable to the district
courts) and 9-406A NMRA (applicable
to magistrate, metropolitan, and municipal courts) are used in New Mexico
courts in the course of accepting a guilty
plea. See Rules 5-303(E)(5), 6-502(D)(2),
7-502(E)(2), & 8-502(D)(2) (predicating
acceptance of a guilty plea by a district,
magistrate, metropolitan, or municipal
court, respectively, on that court’s colloquy
with the defendant directly, assuring the
defendant’s understanding of the immigration consequences of the plea). Third,
a noncitizen defendant’s knowing and
voluntary guilty plea depends upon that
defendant having received proper advice
regarding the immigration consequences
of the plea. Paredez, 2004-NMSC-036, ¶
19.
{8}In Paredez, we also explained what
would constitute deficient advice, and
therefore ineffective assistance of counsel.
See id. ¶¶ 13-14; see also Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding
that to establish ineffective assistance of
counsel, a defendant must show that (1)
“counsel’s performance was deficient”
and (2) “the deficient performance prejudiced the defense”). Advising a client that
deportation is not a consequence when
deportation is a possibility, advising the
client that deportation is only a possibility
when it is a virtual certainty, or failing to
give the client any advice at all regarding
immigration consequences all constitute
evidence of deficient advice that could satisfy the first prong for ineffective assistance
of counsel. Paredez, 2004-NMSC-036, ¶¶
15-16. Proof that the defendant would not
have pleaded guilty except for the deficient
advice demonstrates prejudice. See id. ¶ 20.
If the defendant is prejudiced by the deficient advice, the attorney’s representation
was ineffective, and the defendant may
withdraw the guilty plea. See id. ¶ 19.
{9}Whether Paredez should apply retroactively is an issue of first impression in
New Mexico. We review the retroactive
application of a judicial opinion de novo.
Kersey v. Hatch, 2010-NMSC-020, ¶ 14,
148 N.M. 381, 237 P.3d 683.
{10} Chaidez declined to retroactively
apply Padilla, Paredez’s federal corollary,
because Padilla represented a “new rule”
under the federal analysis formulated in
Teague v. Lane, 489 U.S. 288, 290-92 (1989)
(adopting the view that “new rules [of
criminal procedure are] not . . . applicable
to those cases that have become final before the new rules were announced”), holding limited on other grounds by Lockhart v.
Advance Opinions
Fretwell, 506 U.S. 364, 372-73 (1993). Chaidez, ___ U.S. at ___, 133 S. Ct. at 1107-08
(“Padilla thus announced a ‘new rule.’ ”).
The State concedes that this Court is not
required to follow Chaidez. See Danforth
v. Minnesota, 552 U.S. 264, 280-81 (2008)
(holding that Teague was not intended
“to limit a state court’s authority to grant
relief for violations of new rules of constitutional law when reviewing its own State’s
convictions”).
{11} Pursuant to Teague, New Mexico
does not give retroactive effect to a new
criminal procedure rule. See Kersey, 2010NMSC-020, ¶¶ 1, 25. The test determines
whether a previously issued judicial
opinion introduced a new rule of criminal
procedure or merely expanded upon an
already established rule. See id. Under
Teague, “new rules generally should not
be afforded retroactive effect unless (1)
the rule is substantive in nature, in that
it alters the range of conduct or the class
of persons that the law punishes, or (2)
although procedural in nature, the rule
announces a watershed rule of criminal
procedure.” Kersey, 2010-NMSC-020, ¶
25 (internal quotation marks and citations
omitted). A “new rule” is one that “breaks
new ground or imposes a new obligation on
the States . . . [or where] the result was not
dictated by precedent existing at the time
the defendant’s conviction became final.” Id.
¶ 16 (internal quotation marks and citations
omitted). A rule that is not deemed a “new
rule” by this test may apply retroactively.
{12} Although in Chaidez the United
States Supreme Court clarifies “that a
lawyer who neglects to inform a client
about the risk of deportation is professionally incompetent,” ___ U.S. at ___, 133
S. Ct. at 1108, the Court held that Padilla
imposed “a new obligation” on attorneys
to counsel their clients about the immigration consequences of their pleas, id.
at 1110-11 (internal quotation marks and
citation omitted). Rule 11 of the Federal
Rules of Criminal Procedure governs the
taking of guilty pleas. See Fed. R. Crim. P.
11. Prior to Chaidez, immigration consequences were not part of the plea colloquy
under Rule 11(b). However, in 2013, after
Chaidez, Rule 11 was amended to require
the court to “inform the defendant of, and
determine that the defendant understands,
the following . . . that, if convicted, a defendant who is not a United States citizen
may be removed from the United States,
denied citizenship, and denied admission
to the United States in the future.” Fed. R.
Crim. P. 11(b)(1)(O).
{13} Unlike the federal system, since
1990 New Mexico has required attorneys
in all trial courts to advise their clients
of the details of the plea colloquy. Form
9-406 was amended in 1990 to, among
other things, require the judge to advise
the defendant that a conviction may have
an effect on the defendant’s immigration
status. Form 9-406 (1990), applicable to
all New Mexico trial courts, also obligated
the attorney to certify having explained the
plea colloquy to the client in detail. As it
existed after amendment in 1990, and as it
appeared in 1997 when Ramirez pleaded
guilty, Form 9-406 (which applied to Rules
5-303, 6-502, 7-502, and 8-502) provided:
STATE OF NEW MEXICO
COUNTY OF __________________
IN THE ______________ COURT
STATE OF NEW MEXICO
v. No. __________________
John Doe
GUILTY PLEA PROCEEDING
The defendant personally appearing
before me, I have ascertained the following
facts, noting each by initialing it.
Judge’s Initial
_______ 1. That the defendant understands the charges set forth in the (complaint) (information) (indictment).
_______ 2. That the defendant understands the range of possible sentence for
the offenses charged, from a suspended
sentence to a maximum of _________.
_______ 3. That the defendant understands the following constitutional rights
which the defendant gives up by pleading
(guilty) (guilty but mentally ill):
_______ (a) the right to trial by jury, if any;
_______ (b) the right to the assistance of
an attorney at all stages of the proceeding, and to an appointed attorney, to be
furnished free of charge, if the defendant
cannot afford one;
_______ (c) the right to confront the witnesses against him and to cross-examine
them as to the truthfulness of their testimony;
_______ (d) the right to present evidence
on his own behalf, and to have the state
compel witnesses of his choosing to appear
and testify;
_______ (e) the right to remain silent and
to be presumed innocent until proven
guilty beyond a reasonable doubt.
_______ 4. That the defendant wishes to
give up the constitutional rights of which
the defendant has been advised.
_______ 5. That there exists a basis in
fact for believing the defendant is (guilty)
(guilty but mentally ill) of the offenses
charged and that an independent record
for such factual basis has been made.
_______ 6. That the defendant and the
prosecutor have entered into a plea agreement and that the defendant understands
and consents to its terms. (Indicate
“NONE” if a plea agreement has not been
signed.)
_______ 7. That the plea is voluntary and
not the result of force, threats or promises
other than a plea agreement.
_______ 8. That under the circumstances,
it is reasonable that the defendant plead
(guilty) (guilty but mentally ill).
_______ 9. That the defendant understands
that a conviction may have an effect upon
the defendant’s immigration or naturalization status.
On the basis of these findings, I
conclude that the defendant knowingly,
voluntarily and intelligently pleads (guilty)
(guilty but mentally ill) to the above
charges and accept such plea. A copy of
this affidavit shall be made a part of the
record in the above-styled case.
____________
___________
District Judge
Date
CERTIFICATE BY DEFENDANT
I certify that the judge personally advised me of the matters noted above, that
I understand the constitutional rights that
I am giving up by pleading (guilty) (guilty
but mentally ill) and that I desire to plead
(guilty) (guilty but mentally ill) to the
charges stated.
_____________
Defendant
Subscribed and sworn to
before me this ________
day of ______, 19______
________________________________
Clerk, Notary or Other Officer Authorized
to Administer Oaths
The undersigned attorney hereby
certifies that he has conferred with his
client with reference to the execution of
this affidavit and that he has explained in
detail its contents.
_____________
Defense Counsel
[As amended, effective September 1, 1990.]
(Emphasis added.)
{14} A rule may be viewed as new if its
“result was not dictated by precedent existing at the time the defendant’s conviction became final.” Kersey, 2010-NMSC-
21
Advance Opinions
020, ¶ 16 (internal quotation marks and
citations omitted). The Chaidez majority
concluded that Padilla announced a new
rule because until Padilla the United
States Supreme Court “had declined to
decide whether the Sixth Amendment
had any relevance to a lawyer’s advice
about matters not part of a criminal proceeding.” Chaidez, ___ U.S. at ___, 133
S. Ct. at 1110. However, in 1990 the New
Mexico Supreme Court required lawyers
to advise their clients about immigration
consequences as part of the criminal
guilty plea proceeding. See Form 9-406
(1990). Our holding today aligns with
Justice Sotomayor’s dissent in Chaidez,
where she wrote,
Padilla did nothing more than apply the existing rule of Strickland
. . . in a new setting, the same way
the Court has done repeatedly in
the past: by surveying the relevant
professional norms and concluding that they unequivocally
required attorneys to provide
advice about the immigration
consequences of a guilty plea.
Chaidez, ___ U.S. at ___, 133 S. Ct. at 1114
(Sotomayor, J., dissenting) (internal citation omitted).
{15} We surveyed the professional norms
relevant in New Mexico, which indicate
that counsel was obligated at the time of
Ramirez’s arraignment and pleas to certify
having conferred with Ramirez about the
plea affidavit, including potential immigration consequences of a guilty plea.
These professional norms were hardly
novel, even in 1990. In 1982, the American
Bar Association stated the importance of
criminal defense attorneys advising clients
about the effect a guilty plea might have
on immigration consequences. See 3 ABA
Standards for Criminal Justice 14–3.2 cmt.,
at 75 (2d ed. 1982). The United States Supreme Court acknowledged ABA Standard
14–3.2 in Immigration & Naturalization
22
Service v. St. Cyr, 533 U.S. 289, 323 n.48
(2001) (“[T]he American Bar Association’s
Standards for Criminal Justice provide
that, if a defendant will face deportation
as a result of a conviction, defense counsel
‘should fully advise the defendant of these
consequences.’” (quoting ABA Standard
14–3.2 cmt., at 75)); Donald J. Newman,
Conviction: The Determination of Guilt or
Innocence Without Trial, at 209 (Frank J.
Remington ed., 1966) (“Effective counseling regarding the likely consequences of
the guilty plea requires the lawyer to have
intimate knowledge of sentencing provisions and procedures.”).
{16} At the time Ramirez entered his
guilty pleas, additional immigrationspecific and general guidelines existed
which counseled defense attorneys on how
to competently advise clients regarding
immigration consequences. In 1995, the
National Legal Aid and Defender Association recognized that “[i]n order to develop
an overall negotiation plan, counsel should
be fully aware of, and make sure the client
is fully aware of: . . . (3) other consequences
of conviction such as deportation.” National Legal Aid & Defender Association,
Performance Guidelines for Criminal Defense Representation Guideline 6.2(a)(3)
(1995); F. Lee Bailey & Kenneth J. Fishman,
Handling Misdemeanor Cases § 3.7, at 5-6
(2d ed. 1992) (“In misdemeanor cases,
the possible consequences of a conviction
may be so drastic that the defendant must
take his or her chances on a trial. . . . A
convicted alien may be deported.”).
{17} Although we may have decided to
follow the majority opinion in Chaidez
had we not historically included checks
regarding immigration consequences in
our guilty plea proceedings, the fact is that
the State of New Mexico has had such a
requirement since 1990. While there is no
record of Form 9-406 (1990) or the corresponding plea colloquy in this case, we
have held in other cases where counsel has
failed to properly advise a client during the
plea entry phase that not even a record of
the court’s adherence to the plea colloquy
cures the ineffective assistance of counsel.
See State v. Hunter, 2006-NMSC-043, ¶ 29,
140 N.M. 406, 143 P.3d 168 (holding that
where a district court “properly conducted
the plea hearing, adhering to our rules governing the entry of pleas,” that proper plea
hearing could not “cure a defect caused by
ineffective advice of counsel”). In this case,
the presumptive plea colloquy between the
court and Ramirez required the court to
determine whether Ramirez was aware of
the potential immigration consequences
of his guilty pleas; and the rule prescribing
that determination by the court had existed in that form for seven years preceding
Ramirez’s arraignment and pleas. We hold
today that Ramirez has a viable claim for
withdrawal of his 1997 guilty pleas based
on ineffective assistance of counsel pursuant to Form 9-406 (1990), which required
attorneys to inform their clients in detail of
the possible immigration consequences of
a guilty plea. We fail to see how our holding
in Paredez—seven years after Ramirez’s
pleas and fourteen years after Form 9-406
was amended to require that the trial court
assure a defendant’s understanding that a
guilty plea could affect the defendant’s immigration status—announced a new rule.
CONCLUSION
{18} We affirm the Court of Appeals and
remand this case to the district court to
allow Ramirez the opportunity to claim
ineffective assistance of counsel and seek
withdrawal of his guilty pleas.
{19} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Senior Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
Advance Opinions
STATE OF NEW MEXICO, ex rel., GARY K. KING, Attorney General,
Plaintiff-Appellant,
v.
B&B INVESTMENT GROUP, INC., d/b/a CASH LOANS NOW,
and AMERICAN CASH LOANS, LLC, d/b/a AMERICAN CASH LOANS,
Defendants-Appellees
No. 34,266 (filed June 26, 2014)
CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS
GARY K. KING
Attorney General
KAREN J. MEYERS
JOHN D. THOMPSON
Santa Fe, New Mexico
for Appellant
Opinion
Edward L. Chávez, Justice
{1}In January 2006, two former payday
lenders, B&B Investment Group, Inc., and
American Cash Loans, LLC (Defendants),
began to market and originate high-cost
signature loans of $50 to $300, primarily
to less-educated and financially unsophisticated individuals, obscuring from them
the details of the cost of such loans. The
loans were for twelve months, payable
biweekly, and carried annual percentage
rates (APRs) ranging from 1,147.14 to
1,500 percent. The Attorney General’s
Office (the State) sued Defendants, alleging that the signature loan products
were procedurally and substantively unconscionable under the common law and
that they violated the Unfair Practices Act
(UPA), NMSA 1978, Sections 57-12-1 to
-26 (1967, as amended through 2009).
{2}The district court found that Defendants’ marketing and loan origination
procedures were unconscionable and enjoined certain of its practices in the future,
but declined to find the high-cost loans
substantively unconscionable, concluding
that it is the Legislature’s responsibility to
determine limits on interest rates. Both
parties appealed. We affirm the district
court’s finding of procedural unconscionability. However, we reverse the district
court’s refusal to find that the loans were
ALEX C. WALKER
MODRALL, SPERLING, ROEHL,
HARRIS & SISK, P.A.
for Appellees
substantively unconscionable because under the UPA, courts have the responsibility
to determine whether a contract results
in a gross disparity between the value
received by a person and the price paid.
We conclude that the interest rates in this
case are substantively unconscionable and
violate the UPA.
I.BACKGROUND
{3}Defendants market, offer, and originate high-interest, small-principal loans
that they call “signature loans,” from retail
storefronts in Albuquerque, Farmington,
and Hobbs, New Mexico. Signature loans
are unsecured loans which require only
the signature of the borrower, along with
verification of employment, home address,
identity, and references. Borrowers take
out loans of $50 to $300 in principal, which
are scheduled for repayment in biweekly
installments over a year. Signature loans
carry APRs between 1,147.14 and 1,500
percent.
{4}Defendants are subprime lenders
from Illinois who opened several payday
lending operations in New Mexico in the
early 2000s because, according to company
president James Bartlett, “there was no
usury cap” here. Before 2006, Defendants’
loan portfolios were predominantly “payday loans” which, like signature loans, are
small-principal, high-interest loans. See
Nathalie Martin, 1000% Interest—Good
While Supplies Last: A Study of Payday
Loan Practices and Solutions, 52 Ariz.
L. Rev. 563, 564 (2010). Payday loans
differ from signature loans primarily in
the length of time they take to mature:
payday loan terms are between fourteen
and thirty-five days, whereas Defendants’
signature loans are year-long. Prior to
2007, when legislation was passed to limit
payday lending, payday loans could be
rolled over indefinitely, which essentially
turned them into medium- to long-term
loans that had the effect of keeping the
borrower in debt for extended periods of
time, similar to the signature loans at issue
here. See the 2007 amendments to the New
Mexico Small Loan Act of 1955 (Small
Loan Act), NMSA 1978, §§ 58-15-31 to
-39 (1955, as amended through 2007); see
also Martin, supra, at 585-88 (discussing
the similarities between signature loans
and payday loans).
{5} Defendants converted their loan
products from payday to signature loans
in Illinois in 2005, after the Illinois legislature enacted its Payday Loan Reform Act.
815 Ill. Comp. Stat. 122/1-1, 1-5 (2005).
Defendants also converted their loan
products from payday to signature loans
in New Mexico just before the New Mexico
Legislature implemented extensive payday
loan reforms in 2007. See § 58-15-32. Signature loan products are not subject to the
restrictions placed on payday loans by the
2007 amendments to the Small Loan Act
because they do not meet the definition
of payday loans. Compare § 58-15-2(E)
(defining installment loan) with § 58-152(H) (defining payday loan). By 2008,
Defendants no longer marketed payday
loans at their stores. Defendants admitted
their signature loans “definitely could be a
substitute product” for payday loans.
{6} Defendants extend signature loans to
the working poor; they lend exclusively to
people who provide proof of steady employment but who, by definition, are either
unbanked or underbanked. The Federal
Deposit Insurance Corporation (FDIC)
defines unbanked households as those
without a checking or savings account, and
underbanked households as those that have
a checking or savings account but rely on
alternative financial services. Federal Deposit Insurance Corporation, 2011 FDIC
National Survey of Unbanked and Underbanked Households, Executive Summary
at 3 n.2 (Sept. 2012), http://www.fdic.gov/
householdsurvey/. The State’s expert testified, and Defendants admit, that signature
loans are “alternative financial services.” All
signature loan borrowers are at least underbanked, and those borrowers without a
23
Advance Opinions
checking or savings account are unbanked.
These borrowers are highly likely to live
in poverty: in New Mexico, one-third of
all unbanked households and almost onequarter of all underbanked households
earn less than $15,000 per year.1 Federal
Deposit Insurance Corporation, supra,
Detailed State and MSA Tables, Appendices H-I, Table H-68, Household Banking
Status by Demographic Characteristics:
New Mexico at 71. Borrowers’ testimony
bears out the fact that Defendants target
the working poor.
{7} One borrower, Oscar Wellito, testified
that he took out a signature loan from
Defendants after he went bankrupt. He
was supporting school-aged children while
trying to service debt obligations with two
other small loan companies. He earned
about $9 an hour at a Safeway grocery
store, which was not enough money to
make ends meet, yet too much money to
qualify for public assistance. “That’s why,”
he testified, “I had no choice of getting
these loans, to feed my kids, to live from
one paycheck to another paycheck.” He
needed money for groceries, gas, laundry
soap, and “whatever we need to survive
from one payday to another payday.” Mr.
Wellito borrowed $100 from Defendants.
His loan carried a 1,147.14 APR and required repayment in twenty-six biweekly
installments of $40.16 with a final payment
of $55.34. Thus, the $100 loan carried a
total finance charge of $999.71.
{8} Another borrower, Henrietta Charley,
took out a loan from Defendants for $200
that carried the same 1,147.14 APR as
Mr. Wellito’s loan. Ms. Charley, a medical assistant and mother of three, earned
$10.71 per hour working thirty-two hours
per week in the emergency department
of the San Juan Regional Medical Center.
She earned around $615 in take home
pay every two weeks, while her monthly
expenses, excluding food and gas, exceeded $1,000. Ms. Charley’s ex-husband
would only pay child support “every now
and then,” and when she did not receive
that supplemental income, she would fall
behind on her bills. She needed a loan to
buy groceries and gas. Defendants gave her
a $200 signature loan with a total finance
charge of $2,160.04.
{9}After borrowers brought complaints
to the Attorney General, the State sued
Defendants under the UPA, which prohibits “[u]nfair or deceptive trade practices
and unconscionable trade practices in
the conduct of any trade or commerce.”
Section 57-12-3. Unconscionable trade
practices are defined in relevant part as an
“extension of credit . . . that to a person’s
detriment: (1) takes advantage of the
lack of knowledge, ability, experience or
capacity of a person to a grossly unfair
degree; or (2) results in a gross disparity
between the value received by a person
and the price paid.” Section 57-12-2(E).
The State identified numerous business
practices that it argued were procedurally
unconscionable, and alleged that the loan
terms were substantively unconscionable.
The State sought restitution, civil penalties,
and injunctive relief. The State also sued
Defendants for violating New Mexico’s
common law of substantive and procedural unconscionability.
{10} The district court adjudicated liability in a four-day bench trial, and found
that Defendants had not violated Section
57-12-2(E)(2), but that they had violated
Section 57-12-2(E)(1).2 The district court
correspondingly found that the loans were
not substantively unconscionable, but they
were procedurally unconscionable under
common law. The evidence adduced at
trial is discussed below.
{11} The State appealed, claiming the
district court erred in three ways: first,
by failing to correctly interpret and apply Section 57-12-2(E)(2), reading the
substantive unconscionability prong in
such a way that the section would become
meaningless; second, by failing to apply
the common law doctrine of substantive
unconscionability to the loans; and third,
by denying the State’s requested restitution.
Defendants cross-appealed, claiming the
district court erred in determining that the
loans violated Section 57-12-2(E)(1), and
in determining that the loans violated the
common law of procedural unconscionability. The Court of Appeals certified the
case to this Court pursuant to NMSA 1978,
Section 34-5-14(C)(2) (1972). We accepted
certification.
II. STANDARD OF REVIEW
{12} Because the litigation in this case
involved a determination of whether a
contract was unconscionable, we review
de novo. “By both statute and case law, we
review whether a contract is unconscionable as a matter of law.” Cordova v. World
Fin. Corp. of N.M., 2009-NMSC-021, ¶
11, 146 N.M. 256, 208 P.3d 901 (citing
NMSA 1978, § 55-2-302 (1961) (“providing that courts, as a matter of law, may
police against contracts or clauses found
unconscionable”)); see also Fiser v. Dell
Computer Corp., 2008-NMSC-046, ¶ 19,
144 N.M. 464, 188 P.3d 1215 (stating that
unconscionability “is a matter of law and
is reviewed de novo.”). The district court’s
factual findings are reviewed for substantial evidence. See Landavazo v. Sanchez,
1990-NMSC-114, ¶ 7, 111 N.M. 137, 802
P.2d 1283 (“[The] court views the evidence
in the light most favorable to support the
findings of the trial court.”). “Substantial
evidence is such relevant evidence that a
reasonable mind would find adequate to
support a conclusion.” Id.
III.DISCUSSION
A. There was substantial evidence to
support the district court’s
judgment that Defendants’ loans
were procedurally unconscionable
and violated Section 57-12-2(E)(1)
{13} Section 57-12-2(E)(1) defines an
unconscionable trade practice as any extension of credit that “takes advantage of
the lack of knowledge, ability, experience
or capacity of a person to a grossly unfair
degree” and is detrimental to the borrower.
Defendants challenge the sufficiency of
the evidence for the district court’s finding that they violated Section 57-12-2(E)
(1). To support the district court’s ruling,
there must be substantial evidence that the
borrowers lacked knowledge, ability, experience, or capacity in credit consumption;
that Defendants took advantage of borrowers’ deficits in those areas; and that these
practices took advantage of borrowers to
a grossly unfair degree to the borrowers’
detriment. Section 57-12-2(E). We conclude that substantial evidence supports
the district court’s findings as to each of
these elements.
1.Evidence of borrowers’ lack of
financial sophistication
{14} There was substantial evidence that
the borrowers lacked knowledge, ability,
experience, or capacity in credit consumption. The district court heard from Defendants that a “[s]ignature loan primarily is
for someone that is an unbanked person
1In 2014, the federal poverty level for a family of four in the 48 contiguous states and the District of Columbia was $23,850. Annual Update of the HHS Poverty Guidelines, 79 Fed. Reg 3593-01, 3593 (Jan. 22, 2014).
2The district court misstated Section 57-12-2(E)(1) as Section 57-12-1(E)(1) in the final paragraph of its decision.
24
Advance Opinions
[or] underbanked.” As discussed above, all
signature loan borrowers are by definition
underbanked because they are utilizing
alternative financial services. Ms. Charley
is an example of an underbanked borrower
because although she had access to a bank
account, she only used it to receive child
support payments. A subset of Defendants’
borrowers are unbanked, like Mr. Wellito,
who testified he never had a bank account
because he could not afford to open one.
The district court heard evidence about
demographic characteristics of unbanked
and underbanked New Mexicans, as well
as their behavioral and cognitive biases,
which were borne out by borrower testimony. We will discuss each piece of demographic and cognitive evidence in turn.
{15} Demographically, unbanked and
underbanked New Mexicans have significantly less education than the general
population, are disproportionately living in
poverty, and are more likely to be people
of color. See generally Federal Deposit Insurance Corporation, National Survey of
Unbanked and Underbanked Households
(Dec. 2009). Their education levels are lower: the State presented evidence that in over
25 percent of unbanked and underbanked
households, no one holds a high school
degree, and in only a handful of unbanked
households—just over 9 percent—does
anyone have any college education at all.
Federal Deposit Insurance Corporation,
supra, Appendix B, Detailed State Tables,
Table B-33, Banking Status by Household
Characteristics: New Mexico at 102. They
are more likely to be poor: 27.9 percent of
unbanked households and 24.2 percent of
underbanked households in New Mexico
lived on less than $15,000 per year in 2009.
Id. Over 50 percent of underbanked households live on less than $30,000 per year. Id.
They are also more likely to belong to an
ethnic minority: 41.6 percent of Hispanic
households are unbanked or underbanked,
and 58.3 percent of “other” households
(defined as non-Hispanic, non-black,
and non-white, which is a category that
includes Native Americans) are unbanked
or underbanked. Id.
{16} Behaviorally and cognitively, unbanked and underbanked New Mexicans
exhibit heuristic biases that work to their
detriment. The State’s expert, Professor
Christopher Peterson,3 testified that these
borrowers exhibit certain cognitive biases
that lead them to make decisions that are
contrary to their interests. They exhibit
unrealistic optimism, or fundamental attribution error, meaning that they overestimate their ability to control future
circumstances and underestimate their
exposure to risk. Thus, these borrowers
have unrealistic expectations about their
ability to repay these loans. They also
exhibit intemporal biases, meaning they
tend to focus on short-term gains, while
discounting future losses they might suffer.
Thus, borrowers focus on the promise of
quick cash, and fail to make more considered judgments about the long-term costs
of the loan. They also are subject to “framing” and “anchoring” effects, meaning
that the way the price of a loan is framed
at the outset may distort the prospective
borrower’s perception of the cost, and the
borrower will retain that initial perception.
If the cost initially is framed as being very
low, such as $1.50 per day, a borrower will
“anchor” his or her expectations on that
claim and have difficulty reassessing the
true costs once more information becomes
available. Finally, borrowers are subject to
information overload, meaning that when
they are presented with a technically complex loan agreement, they cease trying to
understand the terms at all because they
realize they will not be able to understand
all of the pricing features.
{17} These cognitive biases were confirmed in a New Mexico-specific study of
borrower perceptions at the point of sale
in the high-cost lending environment,
which Professor Peterson relied on to
formulate his opinion. See Martin, supra,
52 Ariz. L. Rev. at 596-613. In that study
of 109 borrowers, Professor Martin found
that 75 percent of borrowers could not
identify the APR of their small-principal,
high-interest loan at the point of sale, or
mistakenly believed that the interest rate
was between one and 100 percent. Id. at
600-01. Additionally, borrowers could not
reliably distinguish whether their loans
were payday or installment loans, suggesting that the labels—as far as borrowers
were concerned—are a distinction without
a difference. Id. at 586 n.123.
{18} Moreover, these cognitive biases
were consistent with borrower testimony.
Mr. Wellito and Ms. Charley testified that
they thought they would be able to pay
off their loans early, which is consistent
with the unrealistic optimism bias described by Professor Peterson. Evidence
of intemporal bias was shown by Mr.
Wellito’s testimony that he took out the
loan because Defendants’ advertisements
made it “look[] so easy,” like “the money’s
there and . . . [y]ou just walk in and you
just get it . . . [and] you pay it all off.” Ms.
Charley also testified that she took out the
signature loan because it looked like an
“easy” way out of her financial distress. The
theory of framing and anchoring effects
and information overload was consistent
with statements from borrowers who testified that they focused on the biweekly
payment amount and did not consider
the long-term costs of the loan. Borrowers also testified that loan origination at
Defendants’ stores took about 10 minutes
and was a hurried “sign here, sign there”
process, which is further evidence that
the borrowers may have been subject to
information overload at the time of loan
origination.
{19} Beyond cognitive biases, borrowers’
simple lack of knowledge, experience, ability, or capacity in credit transactions was
evident from their testimony. Mr. Wellito,
who had never had a bank account in his
life, could not accurately describe how
interest is calculated, stating that interest
is “when you borrow money . . . you pay
a little bit more to have them lend you
the money.” He did not know that interest is quoted in terms of a percentage,
and did not understand that it is better
for the buyer if the number is lower. Ms.
Charley had not taken out a small loan
before and did not understand that her
loan would require sixteen interest-only
payments. Another borrower, Rose Atcitty,
understood only the amount she would
have to pay and the date she would have
to start repayment when she took out her
signature loan; she was not told about the
interest rate or the finance charge, and did
not understand that it was a year-long loan.
This testimony shows that these were not
sophisticated borrowers, but borrowers
who lacked knowledge of basic consumer
finance concepts and had little experience
in banking and credit markets.
2.Evidence of Defendants’
exploitation of borrowers’
disadvantage
Defendants took advantage of borrowers’
3Professor Peterson is a law professor and associate dean at the University of Utah whose area of research is consumer finance
with a particular focus on high-cost, small-principal loans.
25
Advance Opinions
deficits. Defendants directed their employees to describe the loan cost in terms
of a misleading daily rate. Employees were
instructed to tell customers that interest
rates are typically “between $1.00 and
$1.50 per day, per one hundred you borrow.” Defendants admitted that this was
a factually inaccurate rate. At $1 per day,
the finance charge for one year would be
$365, and at $1.50 per day, the finance
charge would be $547.50, but Defendants
knew that the actual finance charge for one
year would be at least $1,000. Defendants
would also advertise that they were selling
loans at 50 percent off, when in fact the
only thing that was 50 percent off was the
interest on the first installment payment
on the loan.
{21} Defendants aggressively pursued
borrowers to get them to increase the
principal of their loans. “Maximize Every
Customer’s Principle [sic] Balance” and
“maximize every opportunity that presents itself ” was the mandate. Defendants
directed employees to take time every day
to give every customer a “courtesy call[]”
to “make them aware of the possibility of
rewriting their loan if there is availability
on their account.” Employees were also
directed to “CALL[] ACTIVE FILES TO
INCREASE PRINCIPAL” with the objective of “increas[ing the] principal amount
borrowed to build store.” The script for the
courtesy calls was as follows:
Your account balance as of today
is $_______, and your credit
available is $_____. Renewing
your loan with us today Mr./
Mrs.______ would put an extra
$____ in your pocket which I’m
sure would come in handy with
back to school, last minute vacations or anything else that comes
up towards the end of Summer.
Would you like me to get things
ready for you to come in today
and take care of this?
At least one store employee described a
practice of calling customers who were
one payment away from paying off their
loans to encourage them to take out another loan.
{22} Defendants also instructed their
employees to withhold amortization
schedules from customers. The store
manual instructed, “PRINT OUT THE
AMORTIZATION SCHEDULE FOR
THE FILE, BUT NEVER GIVE ONE TO
A CUSTOMER!” Mr. Bartlett claimed that
this entire instruction was a “misprint” in
the 2007 store manual, and explained that
26
the reason he had included it again in the
2010 version is that it was an instruction
he had “overlooked when revising” the
manual. He stated that although “that
is exactly what [the store manual] says,”
Defendants actually train their employees
to give out amortization schedules “to
everybody.” Borrowers, however, testified
that they had not received amortization
schedules. The district court did not credit
Mr. Bartlett’s testimony, finding instead
that Defendants have a practice of withholding the schedules.
{23} Amortization schedules revealed
the signature loans were interest-only
loans for extended periods of time. For
example, the amortization schedule in
Ms. Charley’s file showed that she would
have to make sixteen biweekly payments
of $90.68 each before any of her payments
would be allocated toward her principal.
According to her amortization schedule,
on the seventeenth biweekly payment,
she would finally pay off the first $1.56
toward her principal. Thus, Ms. Charley
would have to make timely payments
totaling $1,541.56 over thirty-four weeks
(seventeen biweekly payments) before her
loan balance would fall below the principal
she borrowed. Defendants did not explain
this to Ms. Charley, nor did they give her
a copy of the amortization schedule.
{24} All of these practices were mandated
by Defendants’ own confidential employee
manuals, demonstrating that they were
systematic company policies, as opposed
to isolated incidents. These practices were
confirmed by the testimony of both store
employees and borrowers.
3.Evidence of gross unfairness and
detriment
Defendants’ practices took advantage of
borrowers to a grossly unfair degree. We
consider whether borrowers were taken
advantage of to a grossly unfair degree
by looking at practices in the aggregate,
as well as the borrowers’ characteristics.
Portales Nat’l Bank v. Ribble, 2003-NMCA093, ¶ 15, 134 N.M. 238, 75 P.3d 838. In
Ribble, the Court of Appeals considered a
bank’s pattern of conduct and demographic factors of the borrowers in determining
whether the bank had violated Section
57-12-2(E)(1) in foreclosing on an elderly
couple’s ranch:
[T]he pattern of conduct by
the Bank . . . when considered
in the aggregate, constitutes
unconscionable trade practices
[under] Section 57-12-2(E).
Though the individual acts may
be legal, it is reasonable to infer
that the Bank took advantage of
the Ribbles to a “grossly unfair
degree” because of (1) the Ribbles’
advancing age, (2) their clear inability to handle their accounts,
and (3) their long-term dealings
with the Bank that could have
justified their belief that the Bank
had sufficient collateral in their
property.
Ribble, 2003-NMCA-093, ¶ 15. Similarly,
the pattern of conduct by Defendants in
this case shows they were leveraging
the borrowers’ cognitive and behavioral
weaknesses to Defendants’ advantage, and
that the borrowers were clearly among
the most financially distressed people in
New Mexico. This evidence supported a
reasonable inference that Defendants were
taking advantage of borrowers to a “grossly
unfair degree.”
{26} Defendants argue that the State
failed to prove detriment because it
“offered no evidence as to whether the
individual borrower thought the loan
transaction worked to his or her detriment.” The UPA does not require a subjective, individualized showing of detriment.
See § 57-12-4 (stating that the UPA is to
be construed in line with Federal Trade
Commission (FTC) interpretations and
federal court decisions); see also Fed. Trade
Comm’n v. Sec. Rare Coin & Bullion Corp.,
931 F.2d 1312, 1316 (8th Cir. 1991) (rejecting individualized proof of detriment and
stating “[i]t would be virtually impossible
for the FTC to offer such proof, and to
require it would thwart and frustrate the
public purposes of FTC action. This is . . . a
government action brought to deter unfair
and deceptive trade practices and obtain
restitution on behalf of a large class . . . . It
would be inconsistent with the statutory
purpose for the court to require proof
of subjective reliance by each individual
consumer.”); Fed. Trade Comm’n v. Kitco
of Nev., Inc., 612 F. Supp. 1282, 1293 (D.
Minn. 1985) (“Requiring proof of subjective reliance by each individual consumer
would thwart effective prosecution of large
consumer redress actions and frustrate
the statutory goals of the [FTC Act].”).
We may presume detriment from the
evidence that Defendants’ corporate practices took unfair advantage of borrowers’
disadvantages to a gross degree. See Fed.
Trade Comm’n v. Nat’l Bus. Consultants,
Inc., 781 F. Supp. 1136, 1141 (E.D. La.
1991) (“[T]he FTC does not need to prove
Advance Opinions
individual reliance on defendants’ material
representations and omissions; rather, the
proper standard to establish reliance in an
FTC action, as here, is based on a pattern
or practice of deceptive behavior.”). Thus,
there was sufficient evidence of detriment
to the borrowers, and substantial evidence
supported the district court’s ruling that
Defendants violated Section 57-12-2(E)
(1).
{27} For the same reasons, there was
also substantial evidence supporting the
finding of procedural unconscionability
as understood in common law. Procedural
unconscionability may be found where
there was inequality in the contract formation. Cordova, 2009-NMSC-021, ¶ 23.
Analyzing procedural unconscionability requires the court to look beyond the
four corners of the contract and examine
factors “including the relative bargaining
strength, sophistication of the parties, and
the extent to which either party felt free to
accept or decline terms demanded by the
other.” Id. As discussed at length above, the
relative bargaining strength and sophistication of the parties is unequal. Moreover,
borrowers are presented with Hobson’s
choice: either accept the quadruple-digit
interest rates, or walk away from the loan.
The substantive terms are preprinted on
a standard form, which is entirely nonnegotiable. The interest rates are set by
drop-down menus in a computer program
that precludes any modification of the offered rate. Employees are forbidden from
manually overriding the computer to make
fee adjustments without written permission from the companies’ owners: manual
overrides “will be considered in violation
of company policy and could result with
. . . criminal charges brought against the
employee and or termination.” Because
these contracts are prepared entirely by
Defendants, who have superior bargaining
power, and are offered to the weaker party
on a take-it-or-leave-it basis, Defendants’
loans are contracts of adhesion. See Fiser,
2008-NMSC-046, ¶ 22 (discussing the
factors that create an adhesive contract).
“Adhesion contracts generally warrant
heightened judicial scrutiny because the
drafting party is in a superior bargaining
position,” Rivera v. Am. Gen. Fin. Servs.,
Inc., 2011-NMSC-033, ¶ 44, 150 N.M. 398,
259 P.3d 803, and although they will not
be found unconscionable in every case,
“an adhesion contract is procedurally
unconscionable and unenforceable when
the terms are patently unfair to the weaker
party.” Id. (internal quotation marks and
citation omitted). Under these circumstances, there is substantial evidence that
Defendants’ loans are procedurally unconscionable under common law.
B.The district court’s permanent
injunction is an appropriate
remedy
{28} The UPA grants the State the right to
seek restitution, civil penalties, and injunctive relief for unfair trade practices. Section
57-12-8(B) (empowering the Attorney
General to “petition the district court for
temporary or permanent injunctive relief
and restitution”); § 57-12-11 (allowing
the Attorney General to recover a civil
penalty of up to $5,000 per willful violation). The district court granted the State a
permanent injunction. “An injunction is an
equitable remedy.” Cafeteria Operators, L.P.
v. Coronado-Santa Fe Assocs., L.P., 1998NMCA-005, ¶ 19, 124 N.M. 440, 952 P.2d
435. “The application of equitable doctrines
and the granting of equitable relief rests in
the sound discretion of the district court.”
Moody v. Stribling, 1999-NMCA-094, ¶ 30,
127 N.M. 630, 985 P.2d 1210. The grant or
denial of equitable remedies is reviewed for
abuse of discretion. Nearburg v. Yates Petroleum Corp., 1997-NMCA-069, ¶ 9, 123
N.M. 526, 943 P.2d 560. “Such discretion
is not a mental discretion to be exercised
as one pleases, but is a legal discretion to
be exercised in conformity with the law.”
Cont’l Potash, Inc. v. Freeport-McMoran,
Inc., 1993-NMSC-039, ¶ 26, 115 N.M.
690, 858 P.2d 66, holding limited on other
grounds by Davis v. Devon Energy Corp.,
2009-NMSC-048, ¶¶ 34-35, 147 N.M. 157,
218 P.3d 75. “An abuse of discretion will
be found when the trial court’s decision is
clearly untenable or contrary to logic and
reason.” Id. (internal quotation marks and
citation omitted).
{29} The district court permanently
prohibited Defendants from (1) targeting
borrowers to try to increase the amount of
their principal debt obligation until the borrower’s file had become inactive for at least
sixty days; (2) quoting the cost of signature
loans “in terms of a daily or other nominal
amount . . . or in any other amount than that
which is mandated by the federal Truth in
Lending Act,” in advertising materials or
during loan origination; (3) engaging in any
practice that focuses the borrower’s attention
on the loan’s installment payment obligation
“without also clearly, conspicuously, and
fully disclosing and explaining the cost of
the loan if repaid over the course of the full
repayment term”; and (4) representing that
the loans will be in any way “easy” to repay.
The district court also ordered Defendants
to (1) provide all borrowers with a copy of
the amortization schedule; (2) provide information regarding a substantive legal defense
and contact information for the Attorney
General’s Office when communicating with
a borrower in connection with debt collection; and (3) revise employee manuals to
reflect these changes.
{30} Because there was substantial
evidence supporting the district court’s
findings that Defendants’ lending practices
were procedurally unconscionable, the
district court had the authority to grant
this injunctive relief pursuant to Section
57-12-8(B). The injunction attempts to
remedy Defendants’ procedurally unconscionable practices and is narrowly
tailored to address each practice. We see
nothing improper about the injunction.
C. The loans were substantively
unconscionable under common
law and the UPA
{31} The district court concluded that
it was precluded from ruling on substantive unconscionability absent an express
statutory prohibition of the interest rates
at issue, and without considering the
evidence on each individual loan issued
by Defendants. We disagree with both
conclusions.
{32} “Unconscionability is an equitable
doctrine, rooted in public policy, which
allows courts to render unenforceable an
agreement that is unreasonably favorable
to one party while precluding a meaningful
choice of the other party.” Cordova, 2009NMSC-021, ¶ 21. Substantive unconscionability is found where the contract terms
themselves are “illegal, contrary to public
policy, or grossly unfair.” Id. ¶ 22 (quoting
Fiser, 2008-NMSC-046, ¶ 20). In determining whether a contract term is substantively
unconscionable, courts examine “whether
the contract terms are commercially reasonable and fair, the purpose and effect of
the terms, the one-sidedness of the terms,
and other similar public policy concerns.”
Id. “Contract provisions that unreasonably
benefit one party over another are substantively unconscionable.” Id. ¶ 25. Thus,
substantive unconscionability can be found
by examining the contract terms on their
face—a simple task when, as here, all substantive contract terms were nonnegotiable,
and embedded in identical boilerplate language. See id. ¶ 22. The test for substantive
unconscionability as outlined in Cordova
simply asks whether the contract term “is
grossly unreasonable and against our public
policy under the circumstances.” Id. ¶ 31.
27
Advance Opinions
We hold it is grossly unreasonable and
against public policy to offer installment
loans at 1,147.14 to 1,500 percent interest
for the following reasons.
{33} Courts are not prohibited from
deciding whether a contract is grossly unreasonable or against public policy simply
because there is not a statute that specifically limits contract terms. In a landmark
case on substantive unconscionability,
Williams v. Walker-Thomas Furniture Co.,
the District of Columbia Circuit Court
reversed the District of Columbia Court
of Appeals on precisely this issue. 350 F.2d
445, 448 (D.C. Cir. 1965). In that case,
the court of appeals had determined that,
although it “[could not] condemn too
strongly appellee’s conduct” in selling a
woman a $514 stereo set “with full knowledge that appellant had to feed, clothe and
support both herself and seven children”
on a $218 monthly income, it would not
find the contract unconscionable because it
found no caselaw or legislation that would
support a declaration that the contract at
issue was contrary to public policy. Id. The
circuit court reversed, stating “[w]e do not
agree that the court lacked the power to
refuse enforcement [of] contracts found to
be unconscionable.” Id. Even in the absence
of binding precedent or statutory power,
the circuit court held that “the notion that
an unconscionable bargain should not
be given full enforcement is by no means
novel.” Id. We agree with the reasoning of
Williams. Ruling on substantive unconscionability is an inherent equitable power
of the court, and does not require prior
legislative action. “Equity supplements the
common law; its rules do not contradict the
common law; rather, they aim at securing
substantial justice when the strict rule of
common law might work hardship.” Larry
A. DiMatteo, The History of Natural Law
Theory: Transforming Embedded Influences
into a Fuller Understanding of Modern Contract Law, 60 U. Pitt. L. Rev. 839, 890 (1999)
(internal quotation marks and citation
omitted). Although there is not a specific
statute specifying a limit on acceptable interest rates for the types of signature loans
in this case, in addition to our caselaw addressing unconscionability, the Legislature
has empowered courts to adjudicate cases
involving claims of unconscionable trade
practices under the UPA.
{34} In determining the public policy
behind the UPA, we must first examine
the statute’s plain language. The statute
expressly prohibits extensions of credit that
take advantage of borrowers’ weaknesses
“to a grossly unfair degree” or that result in
“a gross disparity” between the value and
the price. Section 57-12-2(E). The UPA is
a law that prohibits the economic exploitation of others. The language of the UPA
evinces a legislative recognition that, under
certain conditions, the market is truly not
free, leaving it for courts to determine
when the market is not free, and empowering courts to stop and preclude those who
prey on the desperation of others from
being rewarded with windfall profits.
{35} The district court determined that
the signature loans do not result in a gross
disparity between the value and the price
because borrowers could pay off the loans
early, and they “obtained a value beyond
the face value, or even the time value, of
the money borrowed—the ability to buy
groceries for [their] children now, the ability to buy gas to get to a new job, [and] the
ability to pay off a cell phone.” In adopting
this view, the district court was following
a subjective theory of value, under which
the more desperate a person is for money,
the more “value” that person receives from
a loan. Thus, hypothetically a high-cost
loan could violate the statute if a person
borrows money for betting on blackjack,
because the “value” that person receives
would be low compared to the price of
the loan, whereas the same high-cost loan
sold to a single mother who needs to feed
her children could not violate the statute,
because the “value” that mother receives
would be high compared to the price of
the loan. Under that erroneous reading of
the statute, consumer exploitation would
be legal in direct proportion to the extent
of the consumer’s desperation: the poorer
the person, the more acceptable the exploitation. Such a result cannot be consonant
with the consumer-protective legislative
intent behind the UPA. It is not the use to
which the loan is put that makes its value
low or high, but the terms of the loan itself.
{36} Under an objective, not a subjective, reading of the UPA, Defendants’
signature loans are low-value products.
First, these loans are extremely expensive.
The least expensive signature loan carries
a 1,147.14 APR, meaning a loan of $100
carries a finance charge of $999.71. Second, Defendants do not report positive
repayments to credit reporting agencies.
Thus, borrowers who succeed in bearing the exorbitant costs associated with
these loans and who make good-faith
efforts to repay them can never improve
their credit scores. Borrowers who fail to
pay, however, can have their credit scores
negatively impacted. They can be sued and
have their wages garnished. They will also
be liable for Defendants’ costs of collecting
on the debt, including attorney fees. Third,
there is a $25 bounced check or automatic
clearinghouse fee that can be added to
the cost of the loan each time a check is
returned for insufficient funds, and there
is a 5 percent penalty fee for each late payment, each of which potentially increase
the cost of these loans. Fourth, there is an
acceleration-upon-default clause which
provides that if a borrower falls behind
on his or her payments over the year, then
the full amount of the debt—principal and
interest–comes due immediately. All of
these loan features, in combination with
the quadruple-digit interest rates, make it
a low-value product regardless of how the
borrower uses the principal. Defendants
point out that people who take out mortgages will, like borrowers here, pay several
times the principal in interest payments
over the life of their loan. However, unlike
a mortgage loan, borrowers are not gaining
an asset when taking out a signature loan;
rather, they are taking on liability. The
value the borrower receives from a signature loan consists of a small amount of
principal—never more than $300—and an
enormous amount of risk. Therefore, these
loans are objectively low-value products
and are grossly disproportionate to their
price.
{37} Defendants further contend it is
not the public policy of this state to prohibit usurious interest rates because the
Legislature removed the interest rate cap
in 1981. In this argument lies the implicit
assertion that by removing the interest
rate cap, the Legislature was stating that
there is no interest rate that would violate
public policy. Indeed, Defendants’ expert
testified that interest rates of 11,000 percent or even 11,000,000 percent would be
acceptable under our statutory scheme.4 If
4In an example of the unlimited nature of this argument, Defendants’ expert, Professor Thomas Lehman, also posited that it would
be acceptable for a borrower to agree to harvest a kidney in exchange for $100. However, he stopped short of endorsing freedom to
contract for one’s own involuntary servitude, stating that although one could enter such a contract, one could “break that bond at any
time they want.”
28
Advance Opinions
we were to accept Defendants’ argument,
we would have to hold that the doctrine
of unconscionability as it exists at common law and in the UPA does not apply
to the extension of credit. We decline to
do so because to do so would thwart New
Mexico public policy as expressed in the
UPA and other legislation.
{38} Public policy is not set by a single
statute, or the repeal of a single statute.
Instead, we look to “other statutes in pari
materia under the presumption that the
legislature acted with full knowledge of relevant statutory and common law . . . [and]
did not intend to enact a law inconsistent
with existing law.” State ex rel. Quintana v.
Schnedar, 1993-NMSC-033, ¶ 4, 115 N.M.
573, 855 P.2d 562. We also look to the
common law and to equity in determining
public policy.
{39} Other relevant statutes include the
Small Loan Act, Sections 58-15-31 to -39,
which regulates the small loan industry;
the unconscionability clause of the Uniform Commercial Code (UCC), Section
55-2-302; and the Money, Interest and
Usury Act (Money Act), NMSA 1978,
Sections 56-8-1 to -21 (1851, as amended
through 2004), which sets a default interest rate of 15 percent for contracts where
no interest rate is stated. Section 56-8-3.
Because these statutes were enacted prior
to the UPA, we can infer that the Legislature enacted the UPA with full knowledge
of and in harmony with the public policy
expressed by those statutes. See Schnedar, 1993-NMSC-033, ¶ 4 (holding that
similar statutes “should be harmonized
and construed together when possible, in
a way that facilitates their operation and
the achievement of their goals.” (internal
citation omitted)).
{40} The Legislature enacted the Small
Loan Act in 1955 to, among other factors, “insure more rigid public regulation and supervision of those engaging
in the business of making small loans,
and . . . to facilitate the elimination of
abuse of borrowers.” Section 58-15-1(D).
The Legislature was concerned with the
exploitation of borrowers, declaring
“experience has proven . . . that without
regulations, borrowers of small sums
are often exploited by charges generally
exorbitant in relation to those necessary
to conduct a small loan business.” Section 58-15-1(C). This statutory language
about exploitation and abuse evinces a
consumer-protective public policy goal. At
the time the Small Loan Act was enacted,
New Mexico had an interest rate cap of 12
percent for unsecured debts such as small
installment loans, which Defendants now
offer at between 1,147.14 and 1,500 percent
interest. NMSA 1978, § 56-8-11 (1957),
repealed by 1981 N.M. Laws, ch. 263, § 4
(July 1, 1981).
{41} The UCC also addresses substantive
unconscionability. The New Mexico Legislature adopted the UCC’s unconscionability doctrine in 1961, which codifies the
courts’ broad remedial power to refuse to
enforce an unconscionable contract, strike
the offending clause, or limit the application of the offending clause to avoid an
unconscionable result. Section 55-2-302.
The official comment to Section 55-2-302
directly discusses legislative intent: “This
section is intended to make it possible for
the courts to police explicitly against the
contracts or clauses which they find to be
unconscionable.” Id. cmt. 1. It goes on to
state:
This section is intended to allow
the court to pass directly on the
unconscionability of the contract
or particular clause therein and
to make a conclusion of law as to
its unconscionability. The basic
test is whether, in the light of the
general commercial background
and the commercial needs of
the particular trade or case, the
clauses involved are so one-sided
as to be unconscionable under
the circumstances existing at the
time of the making of the contract. . . . The principle is one of
the prevention of oppression and
unfair surprise.
Id. (emphasis added). Although Section
55-2-302 pertains to the sale of goods,
it was enacted prior to the UPA sections
dealing with unconscionability.5 Therefore, we can infer that when it enacted
the unconscionability clause of the UPA,
the Legislature intended to allow the
courts the same flexibility in determining
whether a contract extending credit is
unconscionable.
{42} The Money Act also evinces a
legislative intent to establish a consumerprotective public policy. Although the
Legislature abolished the interest rate cap
in 1981, Defendants’ argument that in so
doing the Legislature intended to permit
any interest rate is without merit. The
Money Act sets the default interest rate
at 15 percent for contracts that do not
specify an interest rate. See § 56-8-3 (“The
rate of interest, in the absence of a written
contract fixing a different rate, shall be
not more than fifteen percent . . . .”). Thus,
when the Legislature repealed the absolute
cap of 12 percent interest for unsecured
debts but left the default rate in place, it
contemplated that a reasonable interest
rate would be 15 percent. The Money
Act sets the default interest rate for court
judgments at 8.75 percent, unless the
judgment is based on tortious conduct or
bad faith, for which the default interest rate
is 15 percent. Section 56-8-4(A)(2). Fifteen
percent interest was the high end of the
Legislature’s contemplation. Additionally,
the Money Act still prohibits excessive
charges. Section 56-8-9(A) (“[N]o person,
corporation or association, directly or
indirectly, shall take, reserve, receive or
charge any interest . . . or other advantage
for the loan of money or credit . . . except
at the rates permitted in Sections 56-8-1
through 56-98-21 NMSA 1978.”). Lenders
who violate the Money Act are required
to disgorge all profits from the usury, not
offset by their operating costs. See § 56-813 (imposing a penalty of forfeiture of the
entire amount of interest for “[t]he taking,
receiving, reserving or charging of a rate of
interest greater than allowed by this act”).
{43} In 2007, the Legislature amended the
Small Loan Act to try to address the payday
loan crisis in New Mexico. See §§ 58-15-31
to -39; see also Martin, supra, 52 Ariz. L.
Rev. at 577-87 (discussing the legislative
history of payday loan regulation in New
Mexico). The amendments cap the effective interest rate on payday loans at about
400 percent by limiting fees and interest on
payday loans to $15.50 per $100 borrowed,
plus an additional $0.50 per loan for fees
charged by the consumer-information database provider. Section 58-15-33(B), (C).
Payday lenders are required to take into
account the borrower’s financial position,
and they cannot extend loans exceeding
25 percent of the borrower’s gross monthly
income. Section 58-15-32(A). However,
the effective fee cap and other consumer
protections built into the Small Loan
Act only apply to payday loans, defined
5The UCC provision on unconscionability, Section 55-2-302, was enacted by 1961 New Mexico Laws, Chapter 96, Section 2-302,
six years prior to the enactment of UPA Sections 57-12-2 (defining unconscionable trade practices) and 57-12-3 (prohibiting unconscionable trade practices).
29
Advance Opinions
as loans with a duration of fourteen to
thirty-five days, for which the consumer
receives the loan principal and in exchange
gives the lender a personal check or debit
authorization for the amount of the loan
plus interest and fees. Section 58-15-2(H).
{44} Defendants could not lawfully
charge 1,147.14 APR on a year-long loan
under the payday loan provisions of the
Small Loan Act. Defendants were payday
lenders until 2006, the year before the New
Mexico Legislature enacted these statutory
limitations on payday lending. Defendants
admit that they substituted signature
loans for payday loans in Illinois when
the Illinois legislature began to regulate
payday lending. In addition, Defendants
admit that their signature loans could be
considered substitute products for payday
loans in New Mexico. The reasonable
inference is that Defendants’ signature
loan products were specifically designed
to make an end run around the consumer
protections of the Small Loan Act, which
the Legislature tried to prevent by stating
that “licensee[s] shall not . . . use a device
or agreement that would have the effect of
charging or collecting more fees, charges
or interest than that allowed by law by
entering into a different type of transaction
with the consumer that has that effect.”
Section 58-15-34(D). Their success in
evading application of the Small Loan
Act does not immunize Defendants from
other laws that prohibit unconscionable
loan practices.
{45} The Legislature did not repeal all
statutes protecting consumers from usurious practices: far from it, the Legislature
empowered the Attorney General and
private citizens to fight unconscionable
practices through the UPA; it ratified
the court’s inherent equitable power to
invalidate a contract on unconscionability
grounds under the UCC; it maintained a
prohibition on excessive charges and set
a reasonable default interest rate of 15
percent under the Money Act; and it set
a de facto interest rate cap on substantively identical types of loans with the
2007 amendments to the Small Loan Act.
Contrary to Defendants’ contention that
the repeal of the interest rate cap demonstrates a public policy in favor of unlimited
interest rates, the statutes when viewed as
a whole demonstrate a public policy that is
consumer-protective and anti-usurious as
it always has been. A contrary public policy
that permitted excessive charges, usurious
interest rates, or exploitation of naive borrowers would be inequitable, particularly
in New Mexico where a greater percentage
of people are struggling in poverty, and
where more households are unbanked
and underbanked than almost anywhere
in the nation.6 Professor Peterson testified that “Defendants’ signature loan
product is among the most expensive loan
products offered in the recorded history
of human civilization.” For comparison,
interest rates that were considered high
in the mid-twentieth century—rates used
for high-risk borrowers on unsecured
loans—were between 18 and 42 percent.
Mafia loan sharks in New York City at the
height of mafia power charged 250 percent
interest. It is contrary to our public policy,
and therefore unconscionable as a matter
of law, for these historically anomalous
interest rates to be charged in our state.
We next address the appropriate remedy
or remedies for the substantively unconscionable loans.
D.Restitution is the appropriate
remedy for the procedural and
substantive unconscionability of
the signature loans in this case
{46} During the remedies phase of trial,
the State requested that the district court
invalidate all of the loans as the fruit of
unconscionable lending practices and
return the parties to their precontract
status. Thus, the State sought restitution
in the form of a full refund for borrowers
of all money paid in excess of the principal
on their loans. The district court denied
restitution by any measure, reasoning that:
(1) complete avoidance of the loans was
improper because it would result in borrowers paying no interest; (2) the State’s
proposed remedy ignored the subjective
value borrowers received, and would be a
windfall to borrowers; (3) any refunds to
borrowers would have to be offset by the
subjective value they received; and (4) full
refund restitution would be inequitable
because it would put Defendants out of
business. The final question is whether
the district court abused its discretion in
failing to grant restitution.
{47} An abuse of discretion occurs “when
the trial court’s decision is clearly untenable or contrary to logic and reason.” Cont’l
Potash, 1993-NMSC-039, ¶ 26 (internal
quotation marks and citation omitted).
In this case, the district court was correct
in determining that Defendants violated
Section 57-12-2(E)(1), and the loans were
procedurally unconscionable. On that
basis alone, the district court could have
voided the contracts entirely. Loans need
not be both procedurally and substantively
unconscionable to be invalidated by a
court. Cordova, 2009-NMSC-021, ¶ 24
(“[T]here is no absolute requirement in
our law that both [substantive and procedural unconscionability] must be present
to the same degree or that they both be
present at all” in order to invalidate a contract.). Thus, where, as in this case, there
is overwhelming evidence that the loans
were procedurally unconscionable, no
evidence of substantive unconscionability
is needed in order to invalidate the contract. However, in this case, we hold that
the interest rate terms were substantively
unconscionable. Given the fact that these
loans were both substantively and procedurally unconscionable, it would not have
been an abuse of discretion to invalidate
the entirety of the contracts. See, e.g., Rivera, 2011-NMSC-033, ¶ 56 (invalidating
the entire arbitration scheme on substantive unconscionability grounds); Cordova,
2009-NMSC-021, ¶ 40 (same).
{48} Moreover, “[i]n the UPA, the Legislature has provided for damages and
other remedial relief for persons damaged
by unfair, deceptive, and unconscionable
trade practices. Since the UPA constitutes
remedial legislation, we interpret the
provisions of this Act liberally to facilitate
and accomplish its purposes and intent.”
Quynh Truong v. Allstate Ins. Co., 2010NMSC-009, ¶ 30, 147 N.M. 583, 227 P.3d
73 (internal quotation marks and citations
6Nineteen and a half percent of New Mexicans live below the poverty level, compared to 14.9 percent of people nationwide. See
United States Census Bureau, State and County QuickFacts, New Mexico, Persons below poverty level, percent, 2008-2012, http://
quickfacts.census.gov/qfd/states/35000.html. Thirty-five percent of New Mexico households are unbanked or underbanked, compared
to 28.3 percent of households nationwide. Federal Deposit Insurance Corporation, 2011 FDIC National Survey of Unbanked and
Underbanked Households, Appendices A-G, Table C-1, 2011 Household Banking Status by State at 126, www.fdic.gov/householdsurvey/. More New Mexico households are unbanked and underbanked than anywhere in the Northeast, Midwest, or West. Id. Only
six states have a higher or the same percentage of underbanked households: Alabama, Arkansas, Georgia, Louisiana, Mississippi, and
Texas. Id. Only three states have a higher percentage of unbanked households: Arkansas, Mississippi, and Texas. Id.
30
Advance Opinions
omitted). It is the task of the courts to
“ensure that the Unfair Practices Act lends
the protection of its broad application to
innocent consumers.” Ashlock v. Sunwest
Bank of Roswell, N.A., 1988-NMSC-026, ¶
7, 107 N.M. 100, 753 P.2d 346, overruled
on other grounds by Gonzales v. Surgidev
Corp., 1995-NMSC-036, ¶ 16, 120 N.M.
133, 899 P.2d 576. In order to facilitate the
consumer-protective legislative purpose of
the UPA, there was ample reason to grant
restitution to borrowers for Defendants’
unconscionable trade practices. It would
not further the purpose of the UPA under
these circumstances to allow Defendants
to retain the full profits of their unconscionable trade practices. Thus, the district
court abused its discretion in failing to
grant any form of restitution. Nevertheless, we agree with the district court that
it would be inequitable to allow borrowers
to pay no interest at all.
{49} When a contract term is unconscionable, like the 1,147.14 to 1,500 percent
interest rates in this case, the court “may
refuse to enforce the contract, or may
enforce the remainder of the contract
without the unconscionable term, or may
so limit the application of any unconscionable term as to avoid any unconscionable
result.” Padilla v. State Farm Mut. Auto. Ins.
Co., 2003-NMSC-011, ¶ 15, 133 N.M. 661,
68 P.3d 901 (internal quotation marks and
citations omitted). We decline to grant a
windfall to all borrowers by allowing them
to completely avoid the contracts. We hold
instead that the quadruple-digit interest
rate, a substantively unconscionable term,
shall be stricken from the contracts of all
borrowers. We then enforce the remainder
of the contract without the unconscionable
term. Id.
{50} The district court avoided calculating restitution, calling the task “arbitrary
and unjustified” without precise figures
to draw upon. However, the New Mexico
statutes provide a default interest rate that
allows “private lenders to charge interest
on money debts at the legal rate where the
contract is silent on the issue.” Martinez
v. Albuquerque Collection Servs., Inc., 867
F. Supp. 1495, 1508 (D.N.M. 1994) (citing 47 C.J.S. Interest & Usury § 11 (2014)
“(promise to pay interest at the legal rate
implied at law)”). Fifteen percent is the
maximum allowable default interest rate.
Section 56-8-3(A) (“The rate of interest, in
the absence of a written contract fixing a
different rate, shall be not more than fifteen
percent annually . . . on money due by
contract.”); Sunwest Bank of Albuquerque,
N.A. v. Colucci, 1994-NMSC-027, ¶ 24, 117
N.M. 373, 872 P.2d 346 (holding that Section 56-8-3 “fixes the maximum rate” that
can be awarded by the district court). The
default rate under Section 56-8-3 is calculated as simple interest. See Consol. Oil &
Gas, Inc., v. S. Union Co., 1987-NMSC-055,
¶ 42, 106 N.M. 719, 749 P.2d 1098 (holding
that Section 56-8-3 must be calculated as
simple interest); c.f. Peters Corp. v. N.M.
Banquest Investors Corp., 2008-NMSC039, ¶¶ 51-52, 144 N.M. 434, 188 P.3d
1185 (distinguishing Section 56-8-3 from
another statutory section whose express
language allows for compound interest).
Because the unconscionable interest rates
in Defendants’ loans are invalid terms,
these contracts are silent with respect to
rates. We apply the statutory default interest rate of 15 percent simple annual interest
to these loans.
{51} Defendants must refund all money
collected by Defendants on their signature
loans in excess of 15 percent of the loan
principal as restitution for their unconscionable trade practices. We recognize
that the district court could have fashioned a remedy whereby the borrowers
would pay less for these loans by either
setting a default interest rate lower than
the statutory maximum of 15 percent, or
by imposing an amortization schedule on
the loans under which the total finance
charge on the 15 percent simple interest
loans would amount to less than 15 per-
cent of the whole principal. We decline
to do so here for the sake of equity and
to prevent delay. Instead, Defendants will
keep the maximum allowable interest of
15 percent under Section 56-8-3 and refund the remainder of the monies that the
borrowers paid on their loans that is over
15 percent of the principal. For example,
Oscar Wellito’s $100 loan with 1,147.14
APR is now rewritten as a $100 loan with
15 APR. With simple interest, he therefore owes $115 on the contract. He paid
Defendants a total of $160.64. Defendants
must refund $45.64 to Mr. Wellito, which
is the difference between the monies he
paid on their unconscionable contract,
$160.64, and the monies he owes under
the reformed contract, $115. Because these
contracts are unconscionable, Defendants
must also refund any penalties or fees they
collected from borrowers that were associated with missed, late, or partial payments.
IV.CONCLUSION
{52} We hold that loans bearing interest
rates of 1,147.14 to 1,500 percent contravene the public policy of the State of New
Mexico, and the interest rate term in Defendants’ signature loans is substantively
unconscionable and invalid. We therefore
reverse the district court’s ruling on substantive unconscionability. We affirm the
district court’s ruling that Defendants
engaged in procedurally unconscionable
trade practices, and uphold the permanent
injunction granted against Defendants.
Accordingly, we affirm in part, reverse in
part, and remand to the district court for
a determination of damages in accordance
with this opinion.
WE CONCUR:
PETRA JIMENEZ MAES, Senior Justice
CHARLES W. DANIELS, Justice
31
Advance Opinions
PINGHUA ZHAO,
Plaintiff-Petitioner,
v.
KAREN L. MONTOYA, Bernalillo County Assessor,
Defendant-Respondent
No. 33,589 (filed June 30, 2014)
and
GREGG VANCE FALLICK and JANET M. FALLICK,
Plaintiffs-Petitioners,
v.
KAREN L. MONTOYA, Bernalillo County Assessor,
Defendant-Respondent
No. 33,594
ORIGINAL PROCEEDINGS ON CERTIORARI
THERESA M. BACA, District Judge
STEPHANIE L. DZUR
CLINTON W. MARRS
TAX, ESTATE & BUSINESS LAW, LTD.
for Petitioner Pinghua Zhao
CHRISTOPHER DAVID LEE
DAVIS, GILCHRIST & LEE, P.C.
Opinion
Petra Jimenez Maes, Justice
{1} In these consolidated cases, Pinghua
Zhao, Gregg Fallick, and Janet Fallick
(Homeowners) appeal the valuation of
their residences for property tax purposes
as a result of what they allege is “tax lightning,” also known as acquisition-value
taxation. Under acquisition-value taxation,
a real estate owner’s property tax liability
is determined by the value of the property
when acquired, not by the traditional practice of taxing real property on its current
fair market value. In periods of rising real
estate prices such a system compels later
buyers to shoulder a higher annual tax liability than previous buyers. Consequently,
there can be disparities in the tax liabilities
of taxpayers owning similar properties.
32
MICHAEL C. ROSS
AARON GARRETT
ROSS & GARRETT
for Petitioners Gregg Vance Fallick
and Janet M. Fallick
DUFF H. WESTBROOK
SANDERS & WESTBROOK, P.C.
for Respondent
Homeowners challenge the constitutionality of NMSA 1978, Section 7-36-21.2(A)
(3)(a), (B), and (E) (2003, amended 2010)
of the Property Tax Code for creating an
unauthorized class of residential property
taxpayers based solely upon time of acquisition and for violating the equal and
uniform clause of Article VIII, Section 1
of the New Mexico Constitution.
{2} We hold that Section 7-36-21.2 (2003)
creates an authorized class based on the
nature of the property and not the taxpayer. We also hold that the New Mexico
tax system does not violate the equal and
uniform clause of the New Mexico Constitution because it furthers a legitimate state
interest. We further hold that the Court
of Appeals erred in its interpretation of
“owner-occupant.” Therefore, we affirm
in part and reverse in part the Court of
Appeals.
I. FACTS AND PROCEDURAL
HISTORY
Zhao’s Procedural History
{3}In 2007, Pinghua Zhao (Zhao) purchased residential property in Bernalillo
County. At the time of purchase the property was assessed and valued at $243,786.
In 2008, the property was valued at
$362,600, an increase of 49 percent in one
year. Zhao appealed the 2008 assessment to
the Bernalillo County Valuation Protests
Board (Board), asserting that the correct
valuation should have been $251,100, a
3 percent increase in value based on the
amount set in the preceding year. Zhao
asserted that he was entitled to the 3 percent limitation on increases in valuation
that applied to other properties in the
area that had not changed ownership in
2007. Zhao asserted that the Legislature
could only classify residential property
taxpayers based on the three categories
listed in Article VIII, Section 1(B) of the
New Mexico Constitution, i.e., owneroccupancy, age, or income, and could not
classify residential taxpayers based on
change of ownership.
{4}The Board upheld the Bernalillo
County Assessor’s valuation of Zhao’s
property, explaining that the “assessed
value of the subject property was increased
by more than the 3% limitation of Section
7-36-21.2 because the property owners
purchased the subject property during the
2007 tax year, and thus its value was raised
to the market value as of January 1, 2008.”
Zhao appealed the Board’s decision to the
Second Judicial District Court.
Fallicks’ Procedural History
{5}Like Zhao, Janet and Gregg Fallick
(Fallicks) own property in Bernalillo
County. The Fallicks purchased a home
“around the corner” from Mr. Fallick’s
prior home. The sale and purchase were simultaneous. The 2009 valuation for property tax purposes on the new home was
$902,500, compared to $553,700 for Mr.
Fallick’s prior home. The Fallicks appealed
the valuation of their home to the Board.
Based on comparable properties in their
neighborhood and certain permissible
statutory increases, the Fallicks submitted
that their property should be assessed at
$599,169. The County based its assessment
on the market value of the home for the
year 2009. The Fallicks asserted that the
County’s assessment practices amounted
to tax lightning and violated the equal and
uniform clause of Article VIII, Section
1 of the New Mexico Constitution. The
Board upheld the valuation, finding that
Advance Opinions
the Fallicks failed to meet their “burden
of rebutting the presumption that the assessor’s valuation is correct.” The Fallicks
appealed the Board’s determination to the
Second Judicial District Court.
{6} The district court consolidated Homeowners’ cases and certified the following
question to the Court of Appeals pursuant
to NMSA 1978, Section 39-3-1.1(F) (1999)
(permitting the district court to certify an
issue without making a decision): Whether
NMSA 1978, Section 7-36-21.2 (A)(3)(a),
(B), and (E) (2003) violates Article VIII,
Section 1 (as amended 1998) of the New
Mexico Constitution “because the Subsections create a classification based on when
residential property was acquired, not on
the constitutionally permissible classifications of owner-occupancy, age, or income.”
{7}The Court of Appeals upheld the
statute’s exclusion of the class of properties
that had changed ownership in the prior
year from the 3 percent limitation as a
constitutionally permissible classification
based on owner-occupancy. Zhao v. Montoya, 2012-NMCA-056, ¶ 22, 280 P.3d 918.
The Court reasoned that one is not entitled
to the limitation until acquiring ownership
of the property, at which point one enters
the class of owner-occupants. Id. ¶19.
{8}Judge Sutin concurred with the majority “on the very limited ground that
Subsections (A)(3)(a), (B), and (E) of
Section 7-36-21.2 do not, as Homeowners
contend, unconstitutionally go beyond
owner-occupancy, age, and income by
‘creat[ing] a classification based on when
residential property was acquired[.]’”
Zhao, 2012-NMCA-056, ¶ 25 (Sutin, J.,
specially concurring) (alteration in original). Judge Sutin’s concurrence did note
concern that the application of Section
7-36-21.2 might violate Article VIII, Section 1’s equal and uniform requirement by
creating a method of valuation that results
in unequal and non-uniform valuation
and taxation of the same class of property.
Zhao, 2012-NMCA-056, ¶¶ 34-35 (Sutin,
J., specially concurring). However, the
majority concluded that Homeowners had
abandoned their reliance on the equal and
uniform clause because they conceded that
Section 7-36-21.2 “levies residential property taxes equally and uniformly within the
same class of taxpayers.” Id. ¶ 11.
{9}Homeowners separately appealed
to this Court pursuant to Rule 12-502
NMRA. Zhao raised three issues for review: (1) Whether the Court of Appeals
erred in interpreting the New Mexico
Constitution Article VIII, Section 1(B)
as permitting classification of taxpayers
based upon a change of ownership; (2)
whether the Court of Appeals erred in
holding that Section 7-36-21.2 (B) is a classification based upon owner-occupancy;
and (3) whether the Court of Appeals
erred in holding that Zhao is not within
a protected class entitled to a valuation
limitation. The Fallicks raised the sole
issue of whether the Court of Appeals
erred when it held that Subsection (A)(3)
(a), Subsection (B), and Subsection (E) of
NMSA 1978, Section 7-36-21.2 (2003),
does not violate the equal and uniform
clause of the New Mexico Constitution.
We granted certiorari and consolidated
the appeals.
{10} We first address two of Zhao’s arguments, which can be summarized as
follows: Did the Legislature impermissibly
create a class of taxpayer based on time of
acquisition? Next we address the Fallicks’
argument that New Mexico’s tax scheme
violates the equal and uniform clause of
the New Mexico Constitution. Finally, we
consider whether the Court of Appeals
erred in holding that Zhao is not an owneroccupant entitled to a valuation limitation.
II. STANDARD OF REVIEW
{11} Questions of statutory and constitutional interpretation are reviewed de
novo. Tri-State Generation & Transmission
Ass’n, Inc. v. D’Antonio, 2012-NMSC-039,
¶ 11, 289 P.3d 1232. Legislative acts are
presumed to be constitutional. See Garcia
v. Village of Tijeras, 1988-NMCA-090, ¶
6, 108 N.M. 116, 767 P.2d 355. The party
contesting the constitutionality of a statute
bears the burden of proving the statute is,
in fact, unconstitutional. See id.
III.DISCUSSION
{12} The Legislature’s authority to tax
personal property is found in Article VIII,
Section 1 of the New Mexico Constitution.
Before 1998, Article VIII, Section 1 of the
New Mexico Constitution included only
what is now Subsection (A). Subsection
(A) demanded that “taxes levied upon tangible property shall be in proportion to the
value thereof, and taxes shall be equal and
uniform upon subjects of taxation of the
same class.” N.M. Const. art. VIII, Section
1(A) (1971). Then in 1998, Subsection (B)
was added:
The legislature shall provide by
law for the valuation of residential
property for property taxation
purposes in a manner that limits
annual increases in valuation of
residential property. The limitation may be applied to classes of
residential property taxpayers
based on owner-occupancy, age
or income. The limitations may
be authorized statewide or at the
option of a local jurisdiction and
may include conditions under
which the limitation is applied.
Any valuation limitations authorized as a local jurisdiction
option shall provide for applying
statewide or multi-jurisdictional
property tax rates to the value of
the property as if the valuation
increase limitation did not apply.
N.M. Const. art. VIII, §1(B)(1998).
{13} In response, the Legislature enacted Section 7-36-21.2 in 2000 and then
amended it in 2001 and 2003, which states
in pertinent part:
A. Residential property shall
be valued at its current and correct value in accordance with the
provisions of the Property Tax
Code . . . ; provided that for the
2001 and subsequent tax years,
the value of a property in any tax
year shall not exceed the higher
of one hundred three percent of
the value in the tax year prior to
the tax year in which the property
is being valued or one hundred
six and one-tenth percent of the
value in the tax year two years
prior to the tax year in which the
property is being valued. This
limitation on increases in value
does not apply to:
. . . .
(3) valuation of a residential property in any tax year
in which:
(a) a change of
ownership of the property occurred in the year immediately
prior to the tax year for which the
value of the property for property
taxation purposes is being determined.
. . . .
B. If a change of ownership of
residential property occurred in
the year immediately prior to the
tax year for which the value of the
property for property taxation
purposes is being determined,
the value of the property shall
be its current and correct value
as determined pursuant to the
general valuation provisions of
the Property Tax Code.
....
33
Advance Opinions
E. As used in this section,
“change of ownership” means
a transfer to a transferee by a
transferor of all or any part of
the transferor’s legal or equitable
ownership interest in residential
property except for [certain]
transfer[s].
Section 7-36-21.2 (A)(3)(a), (B), (E).
{14} The Legislature’s inherent authority
and discretion to exercise the State’s power
of taxation is plenary “except in so far as
limited by the Constitution.” Edmunds v.
Bureau of Revenue of N.M., 1958-NMSC112, ¶ 15, 64 N.M. 454, 330 P.2d 131 (internal quotation marks and citation omitted);
see also Flynn, Welch & Yates v. State Tax
Comm’n, 1934-NMSC-001, ¶ 18, 38 N.M.
131, 28 P.2d 889 (“‘The power of taxation is
inherent in the state, and may generally be
exercised through its Legislature without
let or hindrance, except in so far as limited
by the Constitution.’” (citation omitted)).
Thus, the Legislature has broad taxing
authority and may enact any law regarding
taxation that is not expressly or inferentially prohibited by the Constitution. See
Albuquerque Metro. Arroyo Flood Control
Auth. v. Swinburne, 1964-NMSC-206, ¶
19, 74 N.M. 487, 394 P.2d 998.
A. Section 7-36-21.2(A)(3)(a) does
not create an unauthorized class of
residential property taxpayer, but
rather draws a distinction based on
the nature of the property
{15} Zhao argues that the plain language
of Subsection (B) limits annual increases in
valuation of residential property to classes
of residential property taxpayers based on
three, and only three, specified attributes:
owner-occupancy, age, or income. Zhao
asserts that with the adoption of Section
7-36-21.2, which reassesses property at its
“current and correct value” when a “change
of ownership” occurs, the Legislature
established an acquisition value system,
or tax lightning scheme, for residential
property taxation in New Mexico. Therefore, Zhao contends that Section 7-36-21.2
violates the express requirements of Subsection (B) by creating an unauthorized
fourth class of taxpayers based on time of
acquisition.
{16} The State answers that the Legislature did not create a new class of taxpayers;
it created a subclass of residential properties based on the time of acquisition. The
State argues that the classification does not
depend on the identity of the taxpayer;
classification attaches to the property. The
State further asserts that the Legislature
34
has inherent and plenary authority to enact
legislation governing taxation. Thus, it may
in its discretion impose different limitations on different subclasses of residential
properties.
{17} Zhao replies that the Legislature
does not have plenary authority to ignore
the Constitution and that the State’s argument fails to get around the plain language
of Section 7-36-21.2. Zhao asserts that any
way the statute is read, “change of ownership” is not based on a distinction between
residential properties but on a distinction
between residential property taxpayers.
{18} The party challenging the constitutionality of a statute bears a heavy burden
of persuasion. Madrid v. St. Joseph Hosp.,
1996-NMSC-064, ¶ 10, 122 N.M. 524,
928 P.2d 250 (“Absent proof beyond a
reasonable doubt that the Legislature has
enacted a statute which is unconstitutional,
this Court will uphold the statute.”). A
court’s primary goal when construing
a statute is to give effect to the intent of
the Legislature. Diamond v. Diamond,
2012-NMSC-022, ¶ 25, 283 P.3d 260. In
assessing Legislative intent, the reviewing
court looks “first to the plain language of
the statute, giving the words their ordinary
meaning, unless the Legislature indicates
a different one was intended.” Id.
{19} “In the field of taxation, more than
in other fields, the legislature possesses the
greatest freedom in classification . . . .” Michael J. Maloof & Co. v. Bureau of Revenue,
1969-NMSC-100, ¶ 7, 80 N.M. 485, 458
P.2d 89. Therefore, “‘every presumption is
to be indulged in favor of the validity and
regularity of legislative enactments.’” State
v. Smith, 2004-NMSC-032, ¶ 23, 136 N.M.
372, 98 P.3d 1022 (citation omitted).
{20} Before the 1998 amendment the
Legislature could not have enacted a
residential property valuation limitation
cap because Subsection (A) required that
taxes be levied in proportion to assessed
value. When Subsection (B) of the Constitution was added it gave the Legislature
the authority to deviate from Subsection
(A). The first sentence of Subsection (B)
provides that the “legislature shall provide
by law for the valuation of residential
property for property taxation purposes
in a manner that limits annual increases
in valuation of residential property.” N.M.
Const. art. VIII, §1(B) (emphasis added).
The second sentence states that “[t]he
limitation may be applied to classes of
residential property taxpayers based on
owner-occupancy, age or income.” Id.
(emphasis added).
{21} By arguing that the Legislature
impermissibly created another class of
taxpayer characteristics, Zhao conflates
two concepts: the class of property, as defined by its characteristics, and the classes
of taxpayers that own property within that
class. The text of the Constitution itself
acknowledges that these concepts are
distinct. First, we note that Subsection (A)
refers to a “class” of “property,” not “taxpayers.” N.M. Const. art. VIII, Section 1(A)
(“[T]axes levied upon tangible property
shall be in proportion to the value thereof,
and taxes shall be equal and uniform upon
subjects of the same class.”). Similarly, the
first sentence of Subsection (B) does not
refer to taxpayers or property owners, but
instead refers only to property. It is only
the second sentence of Subsection (B) that
mentions classes of taxpayers.
{22} The class of property at issue in this
case is clearly residential, as that is what
is specifically addressed in Subsection
(B). Residential property has characteristics upon which the Legislature may
legitimately create taxing legislation.
Ownership is the fundamental characteristic that defines the nature of property.
See e.g., Black’s Law Dictionary (9th ed.
2009) (defining property as “the right of
ownership”); Muckleroy v. Muckleroy,
1972-NMSC-051, ¶ 5, 84 N.M. 14, 498
P.2d 1357 (“Broadly defined, property
includes every interest a person may have
in a thing that can be the subject of ownership, including the right to enjoy, use,
freely possess and transfer that interest.”).
Without an ownership interest to define
it, property only exists as an amorphous
concept. Improvements are another
characteristic of property itself—whether
the real property is bare land or has been
improved bears directly on how it is valued for tax purposes. See §7-36-21.2(A)
(2) (“This limitation on increases in
value does not apply to . . . any physical
improvements, except for solar energy
system installations, made to the property
during the year immediately prior to the
tax year or omitted in a prior tax year
. . . .”). Further, the use for which the
property is zoned is a characteristic that is
distinct to the property itself. See Section
7-36-21.2(A)(3)(b) (“This limitation on
increases in value does not apply to . . .
valuation of a residential property in any
tax year in which . . . the use or zoning of
the property has changed in the year prior
to the tax year.”).
{23} By contrast, there are characteristics
that are distinct to residential property
Advance Opinions
taxpayers themselves. Subsection (B) lists
the characteristics upon which the valuation
limitation may be based: owner-occupancy,
age, or income. Zhao argues that the Legislature has created a new and constitutionally
impermissible taxpayer characteristic in
the acquisition-value scheme: sellers versus purchasers, or old owners versus new
owners. We disagree with this assertion.
The Legislature has created a valuation
scheme for residential property, a single
class of property, based on the acquisition
of an ownership interest in such property.
Acquisition of an ownership interest in
residential property, which is the ultimate
characteristic of the property itself, establishes the Legislature’s authority to tax. This
is distinct from any individual taxpayer
characteristic.
{24} Having been given the constitutional power to impose a valuation cap
on residential properties, we do not read
anything in the Constitution that requires
the Legislature to impose limitations based
solely on a taxpayer’s characteristics.
Subsection (B) does not state that the cap
must be given in all cases and in the same
manner to everyone. More importantly,
nothing in the language of Subsection
(B) divests the Legislature of its authority
to exercise its inherent, plenary power to
make classifications based on the property.
And, as the second sentence provides, if
the Legislature chooses in its discretion
to impose valuation limitations based
on who the taxpayer is, rather than on a
classification of residential properties, it
may only do so on the basis of the three
enumerated taxpayer characteristics: age,
income, or owner-occupant status. Therefore, the language of Subsection (B) is both
permissive and restrictive.
{25} Zhao’s argument that Subsection (B)
authorizes the Legislature to enact only
certain limitations on the valuation of residential properties ignores the Legislature’s
inherent, plenary authority to exercise the
State’s power of taxation “except in so far
as limited by the Constitution.” Edmunds,
1958-NMSC-112, ¶ 15 (internal quotation
marks and citation omitted). As we have
indicated, the Legislature has broad taxing authority. Included is the authority to
draw lines which would include the power
to impose the cap but with certain conditions.
{26} Moreover, when read in conjunction
with other statutes dealing with the property tax valuation, we are convinced that
the Legislature classified on the basis of
the property, not the taxpayer. As provided
above, Sections 7-36-21.2(A)(3)(b) and (B)
only refer to the nature of the property and
not the taxpayer. Correspondingly, Section 7-36-21.2(E) (3), (5), and (6), which
defines “change of ownership,” rests upon
the characterization of the property:
[A] transfer to a transferee by a
transferor of all or any part of
the transferor’s legal or equitable
ownership interest in residential
property except for a transfer:
. . . . (3) that creates, transfers or terminates, solely between spouses,
any co-owner’s interest;
. . . .
(5) that confirms or corrects
a previous transfer made by a
document that was recorded
in the real estate records of the
county in which the real property
is located;
(6) for the purpose of quieting the
title to real property or resolving
a disputed location of a real property boundary.
{27} Other sections of the Property Tax
Code also make it clear that the Legislature
was aware of the distinction between property and property owners. For example,
NMSA 1978, Section 7-36-21.3 (2013),
provides for different valuation limitations
for properties owned and occupied by low
income and elderly individuals. The statute
expressly refers to “a single-family dwelling
owned and occupied by a person who is
sixty-five years of age or older and whose
modified gross income . . . for the prior
taxable year did not exceed the greater
of eighteen thousand dollars.” Section
7-36-21.3(A) (emphasis added) (citation
omitted). Similarly, other sections allow
exemptions for properties owned and
occupied by qualified individuals such
as heads of family and disabled veterans.
See NMSA 1978, Section 7-37-4 (1993);
NMSA 1978, Section 7-37-5.1 (2004).
{28} Article VIII of the New Mexico
Constitution does not grant the Legislature
limited authority to impose limitations in
valuation increases only on the basis of
three taxpayer characteristics. Instead, it
limits the Legislature’s existing plenary
authority to impose valuation limitations
based on taxpayer characteristics to the
three enumerated characteristics of age,
income, and owner-occupancy. Article
VIII does not, however, impose any restrictions on the Legislature’s authority to
impose limitations in valuation increases
based on its classification of residential
properties. Further, Section 7-36-21.2(A)
(3)(a) does not create an “unauthorized
class of residential property taxpayers” as
Zhao suggests, but rather draws a distinction based on the nature of the property
and not the taxpayer.
{29} We recognize that tax laws are
complex creations with inherently political aspects and, therefore, the Legislature
enjoys broad discretion in formulating tax
policies and in supporting the classifications made. Considering the presumption of validity of legislative enactments,
the Legislature’s plenary authority to
make tax classifications, the absence of
an express limitation in the New Mexico
Constitution, and the distinction between
property owner and property found in
other sections of the Property Code, we
hold that the Legislature did not create an
unauthorized class of taxpayers.
B.New Mexico’s property tax system
does not violate the equal and
uniform clause of the New Mexico
Constitution because it furthers
legitimate state interests
{30} The equal and uniform clause of Article VIII, Section 1(A) of the New Mexico
Constitution states that “[e]xcept as provided in Subsection B of this section, taxes
levied upon tangible property shall be in
proportion to the value thereof, and taxes
shall be equal and uniform upon subjects
of taxation of the same class.” The Fallicks argue that New Mexico’s tax system
violates the equal and uniform provisions
of the Constitution and assert that Judge
Sutin’s concurrence makes it clear that the
valuation procedure of Section 7-36-21.2
carves out unequal treatment for property
that has recently been sold, and that such
inequalities are exasperated when housing
markets fluctuate. The Fallicks further
contend that Section 7-36-21.2 violates the
equal protection clause of the Fourteenth
Amendment of the United States Constitution.
{31} The State argues that the Fallick’s argument should be rejected for two reasons.
First, the State asserts that Homeowners
abandoned this issue during oral argument
in front of the Court of Appeals when
Zhao stated that Homeowners were not
arguing that Section 7-36-21.2 violated
the equal protection clauses of the New
Mexico and United States Constitutions.
See Zhao, 2012-NMCA-056, ¶ 7 n.1 (stating that “Homeowners have eschewed any
argument that the Property Tax Code’s
distinction between residential properties
. . . implicates the equal protection clause
35
Advance Opinions
of the United States and New Mexico Constitutions”). Second, the State contends
that Section 7-36-21.2 does not violate the
equal and uniform clause of Article VIII,
Section 1(A) of the New Mexico Constitution because neighborhood preservation
and the protection of older homeowners’
reliance interests satisfies rational basis for
the Legislature’s classification of residential
properties.
{32} Although the majority opinion from
the Court of Appeals did not address this
issue, Judge Sutin in his concurrence did
note that there may be a question regarding whether Section 7-36-21.2 satisfies the
Section 1(A) of the New Mexico Constitution. Zhao, 2012-NMCA-056, ¶ 26 (Sutin,
J., specially concurring).
{33} This Court granted review of the
broad issue regarding whether Section
7-36-21.2 violates Article VIII, Section 1
of the New Mexico Constitution, which
inherently includes the narrower issue regarding whether Section 7-36-21.2 violates
the equal and uniform clause. Therefore,
the issue regarding whether Section 7-3621.2 violates the equal and uniform clause
of Article VIII, Section 1(A) of the New
Mexico Constitution is properly before this
Court.
{34} When considering whether a legislative tax classification violates the equal
and uniform clause of Article VIII, Section
1(A) of the New Mexico Constitution, we
employ the same test used to determine
whether the classification violates the
equal protection clause of the Fourteenth
Amendment. Anaconda Co. v. Property Tax Dep’t., 1979-NMCA-158, ¶ 22,
94 N.M. 202, 608 P.2d 514 (“[T]he tests in
New Mexico for violation [of Article VIII,
Section 1 of the New Mexico Constitution]
are the same as those used in determining
a violation of the equal protection clause
. . . .”). We therefore apply a rational basis
review for the taxation classification at
issue in this case. See Welch v. Sandoval
Cnty. Valuation Protest Bd., 1997-NMCA086, ¶ 12, 123 N.M. 722, 945 P.2d 452 (“A
classification under the tax laws satisfies
the constitutional requirements if there is
a rational basis for the classification.”).
{35} Whether a statute violates the
Section 1(A) of the New Mexico Constitution requires a court to determine
whether 1) there is a rational basis for
the classification, 2) there is a substantial
difference between the legislatively drawn
categories, and 3) the classification for
36
taxation is reasonable, and 4) the tax is
uniform and equal on all subjects of a
class. See Anaconda, 1979-NMCA-158, ¶
23. In Ernest W. Hahn, Inc. v. Cnty. Assessor, 1978 -NMSC-094, ¶ 15, 92 N.M. 609,
592 P.2d 965, this Court explained that in
order to support a claim under the equal
and uniform clause of the New Mexico
Constitution, the “taxpayer must show that
the inequality is substantial and amounts
to an intentional violation of ‘the essential
principle of practicality and uniformity.’”
(citation omitted). This Court went on to
explain that “a uniform method of taxation
requires that each reappraisal be part of a
systematic and definite plan which provides that all similar properties be valued
in a like manner.” Id. ¶ 16.
{36}Since Anaconda was decided, the
United States Supreme Court issued two
opinions addressing tax discrimination
issues: Allegheny Pittsburgh Coal Co. v.
Cnty. Comm’n of Webster Cnty, West Virginia, 488 U.S. 336 (1989) and Nordlinger
v. Hahn, 505 U.S. 1 (1992).
{37}In Allegheny the United States
Supreme Court unanimously held that
the assessment scheme employed by a
county assessor in Webster County, West
Virginia, violated the Equal Protection
Clause of the U.S. Constitution. 488 U.S.
at 346. The assessor had established a
practice of assessing coal mining property
according to its recent acquisition cost
and only making minor adjustments to
the old selling price of property that had
not recently changed hands. Id. at 338. The
Webster County assessor had established
a de facto acquisition-value assessment
scheme, which resulted in great disparities
in the taxation of comparable properties.
Id. at 345-346. The Court held that equal
protection requires “the seasonable attainment of a rough equality in tax treatment
of similarly situated property owners.” Id.
at 343. The Court found that the assessor’s
periodic adjustments to property, which
had not been recently conveyed, were “too
small to seasonably dissipate the remaining disparity.” Id. at 344.
{38} Furthermore, the West Virginia
“Constitution and laws provide that all
property of the kind held by the petitioners . . . be taxed at a rate uniform
throughout the State according to its
estimated market value.” Id. at 345. The
Court found that the intentional “systematic undervaluation by state officials
of other taxable property in the same
class contravenes the constitutional right
of one taxed upon the full value of his
property.” Id. (internal quotation marks
and citation omitted).
{39}In Nordlinger, the United States
Supreme Court considered whether California’s Proposition 13, which restricted
the taxation and assessment rates of real
property, violated the Equal Protection
Clause of the Fourteenth Amendment.
505 U.S. at 4. Proposition 13, which is now
codified in the California Constitution as
Article XIIIA, placed a cap on real property
taxes at 1 percent of the property’s “full
cash value.” “Full cash value was defined as
the assessed valuation as of the 1975-1976
tax year or, ‘thereafter, the appraised value
of real property when purchased, newly
constructed, or a change in ownership
has occurred . . . .’” Id. at 5. The provision
also imposed a 2 percent cap on annual
increases of assessed valuations. Id. Thus,
through its constitutional amendment,
California approved and codified an
acquisition-value system of property taxation.
{40} In holding that California’s taxation
system did not violate equal protection,
the Supreme Court applied a rational basis
review. Id. at 11. The Court determined
that the “appropriate standard of review is
whether the difference in treatment between
newer and older owners rationally furthers
a legitimate state interest.” Id. Generally,
“the Equal Protection Clause is satisfied so
long as there is a plausible policy reason for
the classification.” Id. By an eight-to-one
vote, the Court concluded that California’s
acquisition-value system satisfied rational
basis and thus did not violate the Equal
Protection Clause. Id. at 18.
{41} The Court had “no difficulty in
ascertaining at least two rational or reasonable considerations. . . .” Id. at 12. The
Court found that California had “a legitimate interest in local neighborhood preservation, continuity, and stability” and in
protecting the reliance interest of existing
homeowners. Id. at 12-13. The Court noted
that as “between newer and older owners,
Article XIIIA does not discriminate with
respect to either the tax rate or the annual
rate of . . . assessments.” Id. at 12. The only
difference in treatment is the basis on
which the property is initially assessed. Id.
{42} In his concurrence in Zhao, Judge
Sutin worried that “it is not all that clear
that [Nordlinger] would control rather than
Allegheny.” Zhao, 2012-NMCA-056, ¶ 34
(Sutin, J., specially concurring). The case
before us is more analogous to Nordlinger,
thus it is dispositive on the issue of whether
Section 7-36.21.2 satisfies rational basis.
Advance Opinions
{43} We agree with United States Supreme
Court that Allegheny is sufficiently distinguishable from Nordlinger. In Nordlinger,
the Court found that Allegheny did not
control because Proposition 13 “was enacted precisely to achieve the benefits of
an acquisition-value system,” while the
unequal assessment practice in Allegheny
had no such purpose. Id. at 15. Therefore,
by distinguishing and not overruling
Allegheny, the Supreme Court chose to
preserve, but severely narrow, the notion
that “dramatic disparities in taxation of
properties of comparable value” can violate
equal protection. Nordlinger, 505 U.S. at 14.
{44} Further, the tax assessor in Allegheny
unilaterally, that is absent an authorizing
statute or constitutional amendment, assessed property within the county at 50
percent of its appraised value. Allegheny,
488 U.S. at 338. Therefore, there was no
indication in Allegheny “that the policies
underlying an acquisition-value taxation
scheme could conceivably have been
the purpose for the Webster County tax
assessor’s unequal assessment scheme.”
Nordlinger, 505 U.S. at 15.
{45} A classification of property for
tax purposes will not be set aside by the
courts, “if any state of facts reasonably
may be conceived to justify it.” Anaconda,
1979-NMCA-158, ¶ 23. Legislative classifications will be upheld if they are “practical and not palpably arbitrary.” Davy v.
McNeill, 1925-NMSC-040, ¶ 14, 31 N.M.
7, 240 P. 482; see also Nordlinger, 505 U.S.
at 2, 18.
{46} We hold that Section 7-36.21.2
rationally furthers the state’s interests
in fostering neighborhood preservation
and stability by “permitting older owners to pay progressively less in taxes than
new owners.” Nordlinger, 505 U.S. at 12.
Also similar to Nordlinger, new and old
homeowners “are treated differently with
respect to one factor only—the basis on
which their property is initially assessed.”
Id. That is precisely the situation before
us. New homeowners are treated differently from old homeowners when their
properties are assessed at their current and
correct value in the year for which their
property taxation is being determined.
See Section 7-36-21.2(B). From that point
forward, the newer homeowners enjoy the
benefit of the 3 percent valuation limitation on residential property, just as newer
homeowners in California “benefit[ted]
in both the short and long run from the
protections of a 1% tax rate ceiling and
no more than a 2% increase in assessment
value per year.” Nordlinger, 505 U.S. at 12.
We also conclude that Section 7-36.21.2
is “part of a systematic and definite plan
which provides that all similar properties
be valued in a like manner.” Ernest W.
Hahn, 1979-NMCA-158, ¶ 16.
{47} Zhao also argues that there is a
significant difference between California’s
choice of acquisition-value in its state
constitution as opposed to New Mexico’s
choice by way of statute alone. We are not
persuaded. The same equation and rationales apply. New Mexico’s statutory choice
of an acquisition-value system would satisfy equal protection no less than California’s choice in its state constitution. Having
satisfied equal protection, New Mexico’s
choice necessarily satisfies the equal and
uniform clause of our state Constitution.
C. The Court of Appeals erred in
holding that Homeowners were
owner-occupants by interpreting
“owner-occupant” to mean nothing
more than “owner”
{48} Zhao argues that the Court of Appeals’ opinion reveals that ownership
alone was the basis for the holding that the
classification of taxpayers found in Section
7-36-21.2 is based upon owner-occupancy.
Zhao contends that the issue of owneroccupancy was not an issue considered by
the Board, that neither party argued that
the taxpayers were being classified based
on owner-occupancy status, and Zhao
was never questioned about his owneroccupancy status.
{49} Zhao directs this Court’s attention to
the following excerpt from of the Court of
Appeals opinion:
We disagree that a new classification of taxpayer is created
based on the time of acquisition.
Section 7-36-21.2 applies the
limitation to increases based
upon when a taxpayer acquires
ownership of the property and,
hence, taxpayer status relative
to that property. An owner of
residential property is “the person in whom is vested any title
to property[.]” NMSA 1978, §
7-35-2(G) (1994). “Property taxes
imposed are the personal obligation of the person owning the
property on the date on which the
property was subject to valuation
for property taxation purposes.”
NMSA 1978, § 7-38-47 (1973).
All property subject to taxation
is valued as of January 1 of each
tax year, Section 7-38-7, at its
“current and correct value[],”
Section 7-36-16(A). The class of
owner-occupants, contained in
Article VIII, Section 1, does not
include anyone until they own
property. What this means is
the classification is based on the
acquisition of taxpayer status. The
value limitation in question only
commences once a taxpayer owns
the property.
Zhao, 2012-NMCA-056, ¶13 (alterations
in original). Zhao contends that the Court
of Appeals erred in interpreting ownership
that occurs with a change of ownership as
giving rise to owner-occupant status. In
so doing, Zhao asserts that Section 7-3621.2 does not classify taxpayers based on
owner-occupant status, but rather classifies taxpayers based on when the taxpayer
becomes an owner of the property, without
regard to occupancy. Zhao notes that the
Court of Appeals’ conclusion that Section7-36-21.2 is based on owner-occupant
status begs the question regarding what
is an owner-occupant and that this issue must be resolved before determining
whether Homeowners qualify as such.
{50} The State disagrees with the Court of
Appeals’ finding that the Section 7-36.21.2
allows individuals to fall within a class
of taxpayers based on their acquisition
of a certain taxpayer status, i.e., owning
property. The State also disagrees with
Zhao’s assertion that there was insufficient
evidence to allow the Court of Appeals to
conclude that Homeowners were owneroccupants. The State asserts that based
on the Homeowners’ submissions to the
district court, the Court of Appeals had
grounds for concluding that Homeowners
were owner-occupants. The State directs
this Court’s attention to Zhao’s statements
in which Zhao referred to the property as
his home, and to Mr. Fallick’s statement
that after his divorce he moved to the
property at issue which was around the
corner from his former home.
{51} The State asserts that the Court
of Appeals limited its review to whether
Section 7-36-21.2 was constitutional as
applied to owner-occupant taxpayers, and
failed to address the broader question, that
was certified by the district court, regarding the overall constitutionality of Section
7-36-21.2. While the Court of Appeals was
free to reformulate the certified question,
see Rule 12-607(C)(4) NMRA, the Court of
Appeals erred in concluding that Section
7-36-21.2 is a classification or limitation
based on owner-occupancy.
37
Advance Opinions
{52} Further, the Court of Appeals erred
by concluding, without explanation, that the
mere purchasing of a residential property
renders an individual an owner-occupant.
Although the Court of Appeals noted that
“[t]he statute’s application or non-application to owners of residential property who
do not occupy their premises is a matter
we leave to the Legislature to evaluate,”
the opinion still creates an impression that
ownership may equate to owner-occupant.
Zhao, 2012-NMCA-056, ¶ 20.
{53} We agree with Zhao that the language contained in the Court of Appeals’
opinion creates the impression that own-
38
ership alone may equate to owner-occupancy and that the change of ownership
provision of Section 7-36-21.2 operates
as a condition on an individual’s ability
to benefit from limitations on valuations.
We clarify that Section 7-36-21.2 does not
violate the New Mexico Constitution as it
limits revaluation for taxation purposes
based upon the nature of property (time of
acquisition) and not the taxpayer (owneroccupancy).
IV.CONCLUSION
{54} We hold that Section 7-36-21.2 does
not violate the New Mexico Constitution
and does not create an unauthorized class
of residential property taxpayers based
solely upon time of acquisition. We also
hold that the Court of Appeals erred in
its interpretation of “owner-occupant.”
Therefore, we affirm in part and reverse
in part the Court of Appeals.
PETRA JIMENEZ MAES, Justice
WE CONCUR:
39
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date for acceptance of applications), and to
submit your application please go to the State
Personnel website at www.SPO.state.nm.us ,
position number 50679.
43
Top-Notch Lawyer Corporate Bankruptcy Legal Practice
Can you imagine yourself being one of the
leaders of a well-known, and nationally recognized bankruptcy legal practice instead
of being an underling for a senior partner?
Is the tremendous number of hours you
invest going to building someone else's legal
practice? We're seeking a top-notch lawyer
to drive our corporate bankruptcy practice
that is regarded as one of the best boutique
bankruptcy legal practices in the Southwest,
and extended through-out the country in
terms of service, value, and results. Imagine
joining our firm and looking out a year from
today. You are regarded as one of the “go-to”
corporate bankruptcy legal experts in New
Mexico, the Southwest, and quickly the entire
country. You've got more business coming in
the door than you can handle. You've reduced
the hours you work, AND concurrently increased your personal income - all of which is
allowing you to maintain your lifestyle. This
elusive ideal lifestyle can't be accomplished
while working 1850-2200 billable hours - a
lifestyle that includes such simple pleasures
as having the time to take your spouse to
the movies or cheering your youngest child
at their soccer game on Saturday morning
(which at your current firm requires you to
put in 6-8 hours on Saturdays on a recurring
basis). The question going through your mind
is probably "How could I convince my friends
from law school and my family that leaving
a larger firm, with numerous lawyers - going
to a more entrepreneurial firm focusing its
practice in bankruptcy - is a good move?"
Here's what you'll tell them to get them off
your back and create a little envy: " I get to
target the clients I want to work with. I get to
focus in bankruptcy and become an expert
- a trusted advisor to some of the largest and
interesting companies in the New Mexico,
the Southwest, and nationally. I get to build
my business that has a direct one-to-one
impact on my future success. No longer will
my success be dictated by others." If you're a
lawyer, who desires to be on the Partner track,
with a strong interest or focus in bankruptcy
law, and your tired of the rat race of a larger
firm, we'd like to sit down and explore this
opportunity with you. Don’t rationalize away
the opportunity by saying you’re too busy to
stop and consider a role that might improve
your income, your family relationships, and
your passion about practicing law. Send Resumé, references and reasons why you think
you are the person for this position to dave@
giddenslaw.com.
44
Experienced Insurance Defense
Attorney – GEICO Albuquerque
GEICO Staff Counsel, the Law Office of Daniel
P. Ulibarri, is seeking an Experienced Insurance Defense Attorney for its Albuquerque,
NM Office, which defends GEICO insureds in
third party cases and GEICO in first party cases
statewide. The Attorney will: handle and manage litigation files from inception through trial
statewide; prepare motions and memoranda
of law; prepare pleadings, discovery, demands
and responses; and draft reports and provide
file analysis. Proficiency in computer use is a
must. Applicants must be in good standing and
licensed to practice in New Mexico’s State and
Federal courts. For position announcement and
application instructions go to www.geico.jobs
and hit the apply now button.
Attorney
WILLIAM F. DAVIS & ASSOC., P.C. a law firm
located in North East Albuquerque, is accepting
applications for an Attorney with 0 to 3 years
experience with motivation to learn and grow
in a dynamic law firm concentrating in the area
of bankruptcy. Candidate should be willing to
work hard and learn the bankruptcy practice.
Law school courses/experience in Bankruptcy,
Secured Transactions and UCC preferred.
Candidate must be licensed in New Mexico.
Our practice consists primarily of Chapter 7,
11 & 13 bankruptcy proceedings and general
business and commercial litigation. Our firm
offers competitive salary, excellent benefits and
a positive work environment. The position is
available immediately. Please send resume via
email to: diane@nmbankruptcy.com
Estate Planning and
Probate Attorney
5 years + experience with Elder Care, Estate
Planning and Probate issues, licensed and
in good standing in New Mexico. Please
send resume to jay@lifeleaflegal.com or fax
to 866.518.1090
Proposals to Provide Personnel
Hearing Officer Services
The Albuquerque Bernalillo County Water
Utility Authority Purchasing Office is seeking proposals to provide personnel hearing
officer services by the designated times and
dates: RFP #: P2015000001; Description:
P2015000001, Personnel Hearing Officer
Services; Due by Date and Time: 09/24/2014
5:00 PM; Proposal forms and information
can be accessed at http://www.abcwua.org/
solicitations.aspx. For additional information
or questions contact the ABCWUA Purchasing Office at (505) 768-3504.
NM Judicial Branch Is Seeking an
Attorney – Aoc Magistrate Court
Division Director
Oversee & manage the NM Magistrate Court
Division (54 Magistrate Courts). Must be a
law school graduate, licensed to practice law
in NM & have 5 yrs. exp. practicing law &
4 yrs. exp. in admin. &/or court mgmt., of
which 3 yrs. must include contracts mgmt. &
supervision. Salary pay range $82K - $128K
plus extensive benefits packages including excellent retirement plan. For more information
please go to the Judicial Branch web page at
www.nmcourts.gov under Job Opportunities.
Taos County
Assistant County Attorney
Taos County seeks an Assistant County Attorney with a strong desire to live and work in
the unique community of Taos, New Mexico.
As an integral part of county government,
the successful candidate will be an active
participant in the issues of importance to
this historic, multi-cultural, artistic and
recreational community. Candidates must
be graduates of an American Bar Association accredited law school and have a New
Mexico law license. The ideal candidate will
have a strong academic record with experience in litigation and with government legal
issues. County government faces a wide
range of challenging legal issues that require
strong analytical, courtroom and diplomatic
skills complimented by a good measure of
common sense. Salary range is $61,089.60
to $86,278.40 depending on qualifications
and includes a benefit package consisting
of medical and dental insurance, paid vacation, sick leave and retirement. Taos County
is an equal opportunity employer. To view
the complete job description and obtain an
employment application, please visit the Taos
County website, www.taoscounty.org, and
click on “job opportunities,” or call the Human Resources Department at 575-737-6309.
Applications should be addressed to Renee
Weber, Human Resources Director, as a hard
copy to 105 Albright Street, Suite J., Taos, NM
87571, or as a PDF email attachment to renee.
weber@taoscounty.org. Applications must be
received by 5:00 p.m., September 19, 2014.
Associate District AttorneyLas Vegas
Position available for an Associate District
Attorney in Las Vegas, New Mexico. Requirements include admission to the New
Mexico State Bar. Please forward your letter
of interest and resumé to Mary Lou Umbarger, District Office Manager, P.O. Box
2025, Las Vegas, New Mexico 87701; e-mail:
mumbarger@da.state.nm.us. Salary will
be based on experience, and in compliance
with the District Attorney’s Personnel and
Compensation Plan.
Pt/Ft Attorneys
Jay Goodman and Associates Law Firm PC
is expanding and seeking PT/FT attorneys
to be based out of our Santa Fe New Mexico
Offices. Applicants must be licensed and
in good standing in New Mexico with 10
years or more experience in Family Law and
Civil Litigation. Candidates must be highly
motivated, innovative, able to function independently as well as within a team, and
consistently interface with computerized
time keeping and calendar systems. The
successful applicant must possess excellent
client communications, computer, research,
writing and courtroom skills. Compensation
level DOE. All replies will be maintained as
confidential. Fax resume, salary history and
letter of interest to 505.989-3440 or email to
jay@jaygoodman.com
Full-Time Staff Attorney
New Mexico Center on Law and Poverty
(www.nmpovertylaw.org) seeks full-time
staff attorney. Required: Law degree and
license; two years of experience practicing
law; excellent research, writing, and legal advocacy skills; ‘no-stone-unturned’ thoroughness and persistence; leadership; ability to be
articulate and forceful in the face of powerful
opposition; detail-orientation; strong Spanish
language skills. Preferred: familiarity with
poverty and civil rights law and advocacy.
Varied, challenging, rewarding work. Good
non-profit salary. Excellent benefits. Balanced
work schedule. Apply in confidence by sending resume and letter specifying how you
meet each of the position reqs to hiringcommittee@nmpovertylaw.org Please put your
name in the subject line. EEOE
Associate Attorney
Riley, Shane & Keller, P.A., an Albuquerque
AV-rated defense firm, seeks an Associate
Attorney for an Appellate / Research &
Writing position. We are seeking a person
with appellate experience as well as skill and
interest in writing. The position will be fulltime with flexibility as to schedule and offsite work opportunity. We offer an excellent
benefits package. Salary is negotiable. Please
mail, fax or e-mail resumes, references and
several examples of your writing to our office
at 3880 Osuna Rd., NE, Albuquerque, NM
87109 c/o Office Manager, (fax) 505-883-4362
or mvelasquez@rsk-law.com
Paralegal
Join our successful, reputable and expanding
Law Firm. Must be bright, consistent, detail
oriented and a team player, with excellent
writing and organization skills. Must be able
to multi-task in a high volume, fast paced
environment. Full time position (M-F 8 to
5)with benefits. See our Mission Statement
at www. ParnallLaw.com. Email cover letter,
resume, references and grade transcripts to
Sandra@parnalllaw.com.
Legal Secretary/Legal Assistant
Downtown insurance defense firm seeking
FT legal secretary with 3+ yrs. recent litigation experience. Current knowledge of State
and Federal District Court rules a must.
Prior insurance defense experience preferred.
Strong work ethic, positive attitude, superior
grammar, clerical and organizational skills
required. Good benefits. Salary DOE. Send
resume and salary history to: Office Administrator, Madison & Mroz, P.A., P.O. Box
25467, Albuquerque, NM 87125-5467 or fax
to 505-242-7184.
Litigation Paralegal
Hinkle Law Firm in Santa Fe seeking litigation
paralegal. Experience (2-3 years) required in
general civil practice, including labor and
employment, insurance defense, and professional malpractice defense. Candidates must
have experience in trial preparation, including
discovery, document production, scheduling
and client contact. Degree or paralegal certificate preferred, but will consider experience
in lieu of. Competitive salary and benefits.
All inquires kept confidential. Santa Fe resident preferred. E-mail resume to: gromero@
hinklelawfirm.com
Paralegal/Secretary
Paralegal/Secretary with NM Personal Injury
and Probate experience. Send resume, work
and salary history Morris Law Firm. 901
Lomas Blvd. NW Albuquerque, NM 87102
Paralegal
The Santa Fe office of Hinkle, Hensley, Shanor
& Martin seeks a paralegal for the practice
areas of environmental, water, natural
resources, real property, public utility and
administrative law. Candidates should have
a strong academic background, excellent research skills and the ability to work independently. Competitive salary and benefits. All
inquires kept confidential. Santa Fe resident
preferred. Please email resume to: gromero@
hinklelawfirm.com
Licensed attorney with 7 years appellate court
experience is available for research and writing assignments, including motions, appellate briefs, issue research and memoranda of
law. Contact Lorien House at 505-715-6566
or llhouselaw@gmail.com.
Office Space
620 Roma N.W.
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fax, internet, janitorial service, copy machine, etc. All of this is
included in the rent of $550 per month. Up
to three offices are available to choose from
and you’ll also have access to five conference rooms, a large waiting area, access to
full library, receptionist to greet clients and
take calls. Call 243-3751 for appointment to
inspect.
Office Space
1, 2, or 3 offices available; plus dedicated
workstation/file space; plus shared space: two
conference rooms, restrooms, break room,
waiting areas. Services include janitorial,
reception, and all utilities, including phone
and internet. Dedicated domain space available on server, copier available. Off street
parking. $550/mo. per office. Four other law
firms in building. Near UNM Law School,
quick freeway access to downtown. Call
Shelly at 265-6491.
Downtown Offices
One or two offices available for rent, including secretarial areas, at 2040 4th St. NW (I-40
& 4th St.), ABQ. Rent includes receptionist,
use of conference rooms, high speed internet,
phone system, free parking for staff and clients, use of copy machine, fax machine and
employee lounge. Contact Jerry or George at
505-243-6721 or gbischof@dcbf.net.
Furnished Office Spaces Available:
Services
Briefs, Research, Appeals--
Leave the writing to me. Experienced, effective, reasonable. cindi.pearlman@gmail.com
(505) 281 6797
Trial Technician
Research and Writing Assignments
Experienced, certified court technician
prepares and displays exhibits at trial. www.
legaleyenm.com, Bill Werntz (505) 264-2434
Up-scale, full-service Attorney offices available! All inclusive amenities: Furnished
offices, Conference room, Receptionist,
Internet, Phone, and Kitchen. Monthly rent,
including support services ranging from
$800-$1,200 a month. Convenient location
with a five minute drive to the Courthouses.
Contact Laurie at Albuquerque Business Law
at (505) 246-2878 if interested!
Taos Conference and Office Space
Taos conference and office space available
for depositions and mediations. Call Robyn
575-758-1225
45
Historic Hudson House
For lease in the downtown ABQ district,
historic Hudson House – One, Two, or Three
attractive office spaces. The downstairs has
separate kitchen and bathroom facilities.
Rent includes telephone equipment, access
to fax, copier, conference rooms, parking,
library and reference materials. Referrals and
co-counsel opportunities. For more information, call Debra at the offices of Leonard
DeLayo, Jr. PC at 505-243-3300.
New Space: Best Location
“Build Out” Yourself
1469SF professional office space. Northeast
views. Can develop to Tenant’s requirements.
Prime Uptown location, high visibility, convenient access to I-40; Bank of America, companion restaurants on-site: Shopping, extensive landscaping, ample parking, full-service
lease. 6% commission to leasing office. Comcast Business Class available at Uptown Square
(includes High-Speed Internet, Telephone and
Television). Also available May 2015 -1474SF
and 2278SF. Call for more information. John
Whisenant or Ron Nelson 883-9662
Two Pristine Offices
Two pristine offices (Comanche and Carlisle)
immediately available in building with other
lawyers. Larger $800/month, smaller $550/
month. Room for flexibility. Use both offices
or just one. Fully furnished, utilities, internet/WiFi, kitchen, conference room, parking.
Contact jmarshall@rainesdivorcelaw.com
For Sale
Bindertek Filing System Binders
BINDERTEK filing system binders, Sets of
Numbered Tabs, Magazine & deposition
Boxfiles, some new, some used, for sale at
below Bindertek's bulk prices. Please call
505-235-6388 in Albuquerque.
SUBMISSION DEADLINES
All advertising must be submitted via
e-mail by 4 p.m. Wednesday, two weeks
prior to publication (Bulletin publishes
every Wednesday). Advertising will
be accepted for publication in the Bar
Bulletin in accordance with standards
and ad rates set by the publisher and
subject to the availability of space. No
guarantees can be given as to advertising
publication dates or placement although
every effort will be made to comply
with publication request. The publisher
reserves the right to review and edit
ads, to request that an ad be revised
prior to publication or to reject any ad.
Cancellations must be received by
10 a.m. on Thursday, 13 days prior
to publication.
For more advertising
information, contact:
Marcia C. Ulibarri at 505-797-6058 or
email mulibarri@nmbar.org
Member Benefits Resource Guide
TM
Virtual Conferencing. Pure and Simple.
We are “The Eagle”
• Attorney Resource
Helpline
• eNews
• Bar Bulletin
• Center for
Legal Education
• Bench & Bar Directory
• Digital Print Center
• Bridge the Gap
Mentorship Program
• Ethics Assistance
• Lawyers and Judges
Assistance Program
• New Mexico Lawyer
• State Bar Center Meeting
Space
• Fee Arbitration Program
Visit www.nmbar.org for the most current member benefits and resources.
46
You can plan for the unexpected …
Succession Planning Handbook
For New Mexico Lawyers
Protecting Your Clients’ Interests
By Providing for a Smooth Transition
After Your Retirement, Death or Disability
A resource for every
lawyer’s practice
July 2014
Have you considered what would
happen to you, your family and
clients if something affected
your ability to practice law for an
extended period of time or worse—
permanently?
New Mexico Supreme Court Lawyer Succession and Transition Committee
State Bar of New Mexico Lawyers and Judges Assistance Program,
Client Protection Fund, Senior Lawyers Division
Do you have a plan for the person
who could handle your practice in
the event of the unexpected?
What you need to craft this plan is available in the Succession Planning
Handbook For New Mexico Lawyers created by the New Mexico Supreme
Court Lawyer Succession and Transition Committee. It’s a complete guide
to ensuring the proper direction for your practice.
Download it from the State Bar website, www.nmbar.org
or contact Jill Anne Yeagley, 505-797-6003 or jyeagley@nmbar.org,
to receive a complimentary copy today.
Be proactive and create a solid plan to protect the interests
of your clients, your family and yourself!
47
CUBA
New dates!
Nov. 9-14
At the invitation of the Union of Cuban
Jurists, the State Bar of New Mexico is
organizing a delegation to visit Cuba to
research the country’s legal system. State
Bar President Erika Anderson will lead the
delegation. We invite you to join in this
unique opportunity.
This delegation will convene in Miami on Nov. 9 and will return to Miami on Nov. 14.
Please see www.professionalsabroad.org for itinerary details.
Our delegation will undertake a comprehensive study of the Cuban legal system, from
the teaching of law, to the criminal justice and judicial systems; civil and family code;
business and commercial rights; and resolving domestic and international commercial
conflicts. CLE credit will not be available.
A parallel program of people-to-people activities will be available for spouses and guests.
For more information, Professionals Abroad, 1-877-298-9677
or www.professionalsabroad.org

9/3 - State Bar

Transcription

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