2/25 - State Bar

Transcription

2/25 - State Bar

February 25, 2015 • Volume 54, No. 8
Inside This Issue
Table of Contents..................................................... 5
Call for Nominations:
Annual Public Lawyer Award................................ 7
Update Your Contact Information for the
2015–2016 Bench & Bar Directory........................ 8
Clerk’s Certificates..................................................14
From the New Mexico Court of Appeals
2015-NMCA-005, No. 31,883:
Lujan v. New Mexico
Department of Transportation........................18
2015-NMCA-006, No. 32,988:
Brown v. Kellogg................................................23
2015-NMCA-007, No. 31,787:
State v. Green......................................................26
Color Prints 1 by Randall V. Biggers (see page 5)
You’re Invited!
Friday, February 27
4 p.m.
CLE Planner
March 6
The 30th Annual Bankruptcy
Year in Review Seminar
6.0 G
1.0 EP
also available via
LIVE WEBCAST
Friday, March 6, 2015 • 8:30 a.m.-5 p.m.
State Bar Center
Co-sponsor: Bankruptcy Law Section
Standard fee: $275 • Bankruptcy Law Section members, government, legal service attorneys, and Paralegal Division members: $245
Webcast fee: $309
The seminar focuses on developments in case law on bankruptcy issues in 2014, both nationally and locally, with special emphasis on
decisions by the U.S. Supreme Court, 10th Circuit Court of Appeals, 10th Circuit B.A.P. and U.S. Bankruptcy Court for the District of New
Mexico. Also included are presentations by the Bankruptcy Judges for the District of New Mexico, the Assistant U.S. Trustee for the
District of New Mexico, the Clerk of Court, and an ethics presentation.
March 13
2015 Ethicspalooza
1.0-6.0 EP
also available via
LIVE WEBCAST
This series of ethics courses taught by members of the Disciplinary Board of the New Mexico
Supreme Court, Office of Disciplinary Counsel will provide concise, informative, practical and
useful information for the ethical practice of law. Take one, two, three, four, five or all six.
Friday, March 13, 2015 • State Bar Center, Albuquerque
Registration will begin half an hour prior to each course.
9 a.m.
10 a.m.
10:15 a.m.
11:15 a.m.
11:30 a.m.
12:30 p.m.
1:30 p.m.
2:30 p.m.
2:45 p.m.
3:45 p.m.
4 p.m.
5 p.m.
Ethically Managing Your Practice
1.0 EP
Standard Fee: $38
Webcast Fee: $46
Christine Long, Esq.
From how to confirm that new representation to how to orderly terminate representation and everything in between,
this session will cover the daily challenges faced by lawyers trying to practice law and run a business.
Break
All Those Fees
1.0 EP
Standard Fee: $38
Webcast Fee: $46
Jane Gagne, Esq.
This session will discuss what is and is not a reasonable attorneys’ fee, whether you can charge flat fees, the prohibition
against non-refundable fees, fee-splitting and contingency fee agreements.
Break
Proper Trust Accounting
1.0 EP
Standard Fee: $38
Webcast Fee: $46
Ann Taylor, Esq.
This “hands-on” session is designed to give participants a chance to learn about and demonstrate the proper
management of a trust account, including ledger keeping and reconciliation and a discussion on the “dos and don’ts”
of trust accounts. This session will also discuss the proper way to handle clients’ non-cash property.
Lunch (provided at the State Bar Center)
Conflicts of Interest
1.0 EP
Standard Fee: $38
Webcast Fee: $46
William Slease, Esq., Chief Disciplinary Counsel
How to recognize them, how to avoid them and what to do when you wake up in the middle of one; this session will
cover the common conflicts that arise in practice.
Break
The Ethics of Social Media Use
1.0 EP
Standard Fee: $38
Webcast Fee: $46
William Slease, Esq.
Facebook, Twitter and G-Chats, oh my! In this session learn about the growing need to use social media in your law
practice and the ethical issues associated with that use.
Break
Civility and Professionalism
1.0 EP
Standard Fee: $38
Webcast Fee: $46
William Slease, Esq.
How do and should lawyers treat one another, the Courts, their opposing parties and their own clients? This session will
discuss a growing concern about incivility and unprofessionalism in the profession, whether and when such behavior
violates the Rules of Professional Conduct, and what can and is being done to address the issues.
Adjournment
Register online at www.nmbar.org or call 505-797-6020.
CENTER FOR LEGAL EDUCATION
2
Bar Bulletin - February 25, 2015 - Volume 54, No. 8
BRISTOL FAMILY LAW
CELEBRATING 3 YEARS
James Bristol is a Board Certified Family Law
Specialist, has an AV Preeminent rating with
Martindale-Hubbel, and is a Fellow in the American
Academy of Matrimonial Lawyers. Looking forward
to serving our Santa Fe and Northern New Mexico
clients now and in the years to come.
Bristol Family Law, LLC
339 W. Manhattan Ave.
Santa Fe, NM 87501
Phone: 505.992.3456
Fax: 505.847.4944
bristolfamilylawfirm.com
Ryan Heffernan
3
You’re Invited!
The State Bar is proud of the tremendous dedication and service that
our membership has given to the legal profession and the public.
We hope you will join us for this important celebration.
Chief Justice Barbara J. Vigil
will address attendees.
Martha Chicoski, President,
will honor attorneys celebrating 25 and 50 years of service.
What: State Bar of New Mexico’s 129th Birthday
Where: State Bar Center, 5121 Masthead NE, Albuquerque, NM
When: 4 p.m., February 27
For more information or to R.S.V.P., contact Evann Kleinschmidt, ekleinschmidt@nmbar.org.
4
Table of Contents
Officers, Board of Bar Commissioners
Mary Martha Chicoski, President
J. Brent Moore, President-Elect
Scotty A. Holloman, Vice President
Dustin K. Hunter, Secretary-Treasurer
Erika E. Anderson, Immediate Past President
Board of Editors
Jamshid Askar
Nicole L. Banks
Alex Cotoia
Kristin J. Dalton
Curtis Hayes
Bruce Herr
Maureen S. Moore
Andrew Sefzik
Mark Standridge
Carolyn Wolf
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • 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
©2015, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: address@nmbar.org. • www.nmbar.org
February 25, 2015, Vol. 54, No. 8
Notices .................................................................................................................................................................6
Legal Education Calendar..............................................................................................................................9
Writs of Certiorari .......................................................................................................................................... 11
Court of Appeals Opinions List.................................................................................................................. 13
Clerk’s Certificates.......................................................................................................................................... 14
Recent Rule-Making Activity...................................................................................................................... 17
Opinions
2015-NMCA-005, No. 31,883:
Lujan v. New Mexico Department of Transportation............................................................... 18
2015-NMCA-006, No. 32,988: Brown v. Kellogg......................................................................... 23
2015-NMCA-007, No. 31,787: State v. Green............................................................................... 26
Advertising....................................................................................................................................................... 31
Meetings
State Bar Workshops
February
February
26
Natural Resources, Energy, and
Environmental Section BOD,
Noon, via teleconference
25
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
27
Immigration Law Section BOD,
Noon, via teleconference
26
5:30 p.m., The Law Office of Kenneth Egan,
Las Cruces
March
March
3
Bankruptcy Law Section BOD,
Noon, U.S. Bankruptcy Court
4
Divorce Options Workshop
3
Health Law Section BOD,
7 a.m., via teleconference
4
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
4
Employment and Labor Law Section BOD,
Noon, State Bar Center
11
Children’s Law Section BOD,
Noon, Juvenile Justice Center
6
Civil Legal Fair
10 a.m.–1 p.m., First Judicial District Court,
First Floor Jury Room, Santa Fe
11
Taxation Section BOD,
11 a.m., via teleconference
25
12
Business Law Section BOD,
4 p.m., via teleconference
28
9 a.m., The Law Office of Kenneth Egan,
Las Cruces
Cover Artist: Randall V. Biggers was born in Roswell. He is a returned Peace Corps volunteer (Afghanistan ’74–’76) who
served for 21 years in the foreign service. He has been actively painting for the past 10 years. The majority of his work is
non-objective. In addition to painting with acrylics, Biggers makes collages and shoots photography. To schedule a private
viewing, email randallbiggersart@gmail.com or call 505-366-3525.
5
Notices
Court News
Supreme Court of New Mexico
Notice of Vacancies on
Supreme Court Committees
The Supreme Court of New Mexico is
seeking applications to fill vacancies on the
following Supreme Court committees:
•Children’s Court Rules Committee:
One vacancy for a newly created position designated at this time for a children’s court attorney who represents
the state in delinquency and youthful
offender proceedings
• Domestic Relations Rules Committee
(one vacancy)
•Joint Committee on Rules of Procedure
(one vacancy)
•Minimum Continuing Legal Education
Board (one vacancy)
Unless otherwise noted, all licensed New
Mexico attorneys are eligible to apply.
Anyone interested in volunteering to serve
on one or more of these committees may
apply by sending a letter of interest and
résumé by mail to Joey D. Moya, Chief
Clerk, PO Box 848, Santa Fe, NM 875040848, by fax to 505-827-4837, or by email
to nmsupremecourtclerk@nmcourts.gov.
The letter of interest should describe the
applicant’s qualifications and should list
committees in order of preference if applying to more than one committee. The
deadline for applications is Feb. 27.
11th Judicial District Court
Notice of Mass Reassignment to
Judge Dalley
Under the authority of Rule 23-109
NMRA, the Chief Judge of the 11th Judicial District Court has directed a mass
reassignment of all family, probate/mental
health cases, with the exception of abuse
and neglect cases, effective Feb. 2 from
Division VIII to Division I, Bradford J.
Dalley, presiding. Pursuant to Rule 1-088.1
NMRA, parties who have not yet exercised
a peremptory excusal in a case being reassigned in this mass reassignment will have
10 business days from Feb. 25 to excuse
Judge Dalley.
Magistrate Mediation
Program
Mediators Needed: Advanced
Training Offered
A 10-hour advanced mediation training
and continuing professional development
is being offered to recruit mediators for the
6
Professionalism Tip
With respect to opposing parties and their counsel:
I will consult with opposing counsel before scheduling depositions and
meetings or before rescheduling hearings.
Bernalillo, Los Lunas, and Belen Magistrate Courts. A 40-hour mediation training
in the facilitative model is a prerequisite.
The training by the ADR Bureau, State Risk
Management, qualifies. Mediation experience is preferred and facilitative mediation
will be used.
This initiative’s goal is to increase mediation in the tri-county area of Sandoval,
Bernalillo, and Valencia counties by building upon the experience and expertise of
existing Magistrate Court Programs, the
Metropolitan Court Mediation Program
and area mediators. Opportunities for
mediators will include gaining mediation
experience and opportunities for on-going
professional development. The training
will include “back to basics,” advanced
techniques, court procedure, and new
rules regarding court-connected mediation and best practices. There will be other
opportunities, including a 40-hour basic
training. Magistrate Mediation Programs
are planned throughout the state.
By law, Magistrate Court mediators
must be volunteers. This training does not
include MCLE credit, which will be explored for future trainings. There is no fee
for the training. In return and to complete
the training experience, the participants
will mediate cases in the Bernalillo, Los
Lunas, and Belen Magistrate Courts. The
requirement is 12 mediations of approximately two hours per mediation.
Space is limited. The trainings are
8:30 a.m. to 5 p.m. on Friday, March 20,
and 9 a.m. to noon on Saturday, March
21, at the State Bar Center. Application
deadline is 5 p.m., February 27. Applicants will be notified of application
results on March 6. To apply or for information, contact David Levin, Mediation
Project Manager, Magistrate Mediation
Program, 2905 Rodeo Park Dr. East,
Building 5, Santa Fe NM 87505, aocdpl@
nmcourts.gov, phone 505-463-1354 or
fax 505-827-4464.
U.S. District Court for the
District of New Mexico
Attorney Federal Bar Dues
With the concurrence of the Article
III judges of the U.S. District Court for
the District of New Mexico, the Federal
Bar dues have been set at $25 for 2015.
Bar dues may be paid online via CM/
ECF. For more information regarding
paying Bar dues, visit www.nmcourt.fed.
us.
State Bar News
Attorney Support Groups
• March 2, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
• March 9, 5:30 p.m.
UNM School of Law, 1117 Stanford
NE, Albuquerque, Room 1119 (The
group meets the second Monday of the
month.)
• March 16, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
For more information, contact Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
Appellate Practice Section
Brown Bag Lunch with
Judge Michael D. Bustamante
The Appellate Practice Section and the
Young Lawyers Division invite members
of the legal community to a noon lunch
discussion with Appellate Court Judge
Michael D. Bustamante on March 13 at
the State Bar Center. These brown bag
lunches in an informal setting are beneficial to lawyers and judges alike. Space is
limited, so R.S.V.P. to Dolph Barnhouse
at dbarnhouse@indiancountrylaw.com
by March 12.
Judge Bustamante, a native New Mexican, graduated from the University of New
Mexico in 1971 with a degree in Economics and American Studies. He received his
law degree from UNM in 1974, and has
been serving the New Mexico Court of
Appeals as a judge since his election in
December 1994. Before that, he was in
private practice with Ortega and Snead,
P.A., and its predecessor from 1974 until
1990, when he went into solo practice.
His work as an attorney included a broad
range of civil matters. He has served on the
Board of Bar Examiners; the Disciplinary
Board; the Bench, Bar Relations Committee of the Supreme Court; and the Judicial
Information Systems Council.
Public Law Section
Accepting Nominations for Annual
Public Lawyer Award
The Public Law Section is accepting
nominations for the Public Lawyer of the
Year Award, which will be presented at
the state capitol on May 1. Visit http://
www.nmbar.org/Nmstatebar/About_Us/
Public_L aw/L awyer_of_the_Year_
Awards.aspx to view previous recipients
and award criteria. Nominations are
due no later than 5 p.m. on March 2.
Send nominations to James Martin, 105
Pine St., Santa Fe, NM 87501, or email
jmartinnm@gmail.com. The selection
committee will consider all nominated
candidates and may nominate candidates
on its own.
Young Lawyers Division
Board Vacancies
The YLD Board is seeking two regional
directors for its board: Region 1, representing San Juan and McKinley counties;
and Region 3, representing the greater
Roswell area/southeastern New Mexico.
Among the duties include attending
board meetings by phone or in person,
and attending and organizing YLD events
in your community. Principal place of
practice must be in the region applicants
would represent. Residency in the region
is not required. Send letters of interest
and résumé to YLD Chair Ken Stalter,
kstalter@nmag.gov, by March 2. For more
information, contact D.D. Wolohan,
dwolohan@nmbar.org.
UNM
The Federalist Society
Right To Work Event
The Federalist Society and Business
Law Society, student organizations at
the UNM School of Law, present “Right
to Work Laws: Compulsory Unionism
and Collective Bargaining” featuring
Mark Mix from the National Right to
Work Legal Defense Foundation and
Fred Mowrer, an attorney with Sanchez,
Mowrer & Desiderio PC. The event will
be held 11:50 a.m.–1 p.m., March 4, at
the UNM School of Law, Room 2401. For
more information, contact Curtis Vernon,
vernonla@law.unm.edu.
Law Library
Hours Through May 9
Building & Circulation
Monday–Thursday Friday
Saturday
Sunday
Reference
Monday–Friday
Librarian on call
Saturday–Sunday
8 a.m.–10 p.m.
8 a.m.–6 p.m.
8 a.m.–5 p.m.
Noon–8 p.m.
9 a.m.–6 p.m.
3–6 p.m.
Closed
Women’s Law Caucus
2015 Justice Mary Walters
Award Dinner
Join the Women’s Law Caucus to honor
Heidi Nesbitt of the American Indian Law
Center and Hon. Anne Kass for the efforts
they have made for New Mexico. The
Justice Mary Walters Award dinner will
be held at 6 p.m., Feb. 27, at the University
of New Mexico School of Law. Tickets
are $55 per person or $400 for a table of
eight. To purchase tickets or for sponsorship information, visit http://lawschool.
unm.edu/students/organizations/wlc/.
Make checks payable to the Women’s
Law Caucus and send to 1117 Stanford
Drive NE, Albuquerque, NM 87106. For
more information, contact Donna Baslee,
basleedo@law.unm.edu, or Elizabeth
Reitzel, reitzeel@law.unm.edu.
Other Bars
Albuquerque Bar Association
Membership Luncheon
Bill Slease will present “Disciplinary
Board Issues and Trends” at the Albuquerque Bar Association’s membership
luncheon at noon, March 3, at the Embassy
Suites Hotel. After the luncheon there will
be a CLE “Top 10 Reasons Lawyers are
Sued” (2.0 G) from 1:15–3:15 p.m. For
more information or to register, visit www.
abqbar.org.
Albuquerque Lawyers Club
March Lunch Meeting
The Albuquerque Lawyers Club invites
members of the legal community to its
monthly lunch meeting. The next meeting will be held on at noon, March 4, at
Seasons Restaurant in Albuquerque. U.S.
District Court Judge James Browning
will be the featured speaker. Cost: Free to
members, $30 non-members. For more
information, contact Yasmin Dennig at
ydennig@Sandia.gov or 505-844-3558.
Bridge the Gap Mentorship Program
This mandatory program approved by
the N.M. Supreme Court offers new lawyers
a highly experienced attorney member to
teach real-world aspects of practice.
Both earn a full year of CLE credits.
For more information, call 505-797-6003.
CLE Opportunity:
Practicing Transformative Law
The Albuquerque Lawyers Club and the
Women’s Bar Association present a CLE
“Is It Just About the Money? Practicing
Transformative Law” (3.0 EP, pending
MCLE approval) from 11 a.m.–2:30 p.m.,
March 13, at Seasons Rotisserie & Grill
in Albuquerque. Speakers include Randi
McGinn, author of Changing Laws, Saving
Lives, Justice Edward L. Chávez, Yasmin
Dennig and Rochelle Lari. The cost of the
program is $125 (includes lunch). Participants may purchase the book Changing
Laws, Saving Lives at a $10 discount upon
registration. Members of either organization will receive a $25 discount. Space is
limited so registration is required. Email
Barbara Koenig at barbara@frjlaw.com to
receive a registration form and for more
information.
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
7
New Mexico Criminal Defense
Lawyers Association
Trial Skills College
Need to brush up on your trial tactics?
Several of New Mexico’s top trial lawyers
have teamed up again this year for the
New Mexico Criminal Defense Lawyers
Association’s Trial Skills College on March
27–28 in Albuquerque. A two-day course
of lectures, small group practice and video
review aspects of a trial from voir dire
to closing statements. Whether you’re a
new lawyer, or need to brush up on your
expertise, everyone is bound to learn
something new. The CLE provides a total
of 14.5 general CLE credits. There are only
36 seats available, so don’t wait to register.
Visit www.nmcdla.org for more details.
Other News
New Mexico Foundation for
Open Government
Save the Date! CLE Opportunity
Registration is open for the New Mexico Foundation for Open Government’s
May 1 seminar on public records and
open meetings laws (5.0 G, 1.0 EP, pending MCLE approval). The program will be
held at the Albuquerque Journal Building
in Journal Center. For more information,
visit http://myemail.constantcontact.com/
New-Mexico-Foundation-for-OpenGovernment-CLE-May-1.html?soid=110
3244704435&aid=SLB8YrkY_j0.
Join the New Mexico Hispanic Bar
Association for a meet and greet and ethics CLE on Feb. 25 in Santa Fe. Supreme
Court Justice Edward L. Chávez and Court
of Appeals Judge Timothy L. Garcia will
present “Tips for Achieving an Ethical and
Professional Practice,” (1.0 EP) at 4 p.m.
at the Inn of the Governors. A meet-andgreet event will follow from 5–7 p.m. at the
Del Charro Saloon with hosted appetizers.
For more information or to register, visit
www.nmhba.net.
8
Enhanced Oil Recovery Institute
The State Bar is co-sponsoring the Special Institute on Enhanced Oil Recovery:
Legal Framework for Sustainable Management of Mature Oil Fields, May 7–8 in San
Antonio, Texas, with the Rocky Mountain
Mineral Law Foundation. State Bar members may register for this program at the
discounted rate. For a detailed program
brochure, online registration and information about discounted hotel rooms at the
Westin Riverwalk Hotel, visit www.rmmlf.
org. Comprehensive course materials will
be provided to all registrants.
2015–2016 Bench & Bar Directory
New Mexico Hispanic Bar
Association
Santa Fe Meet and Greet and CLE
Rocky Mountain Mineral Law
Foundation
Update Your Contact Information by March 27
To verify your current information:
Visit www.nmbar.org. Click on Find an Attorney and search by name.
To submit changes:
Online: Visit www.nmbar.org > for Members > Change of Address
Mail: Address Changes, PO Box 92860, Albuquerque, NM 87199-2860
Fax: 505-828-3765
Email: address@nmbar.org
Publication is not guaranteed for information submitted after March 27.
Legal Education
March
3
Estate Planning for Farms and
Ranches
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
Ethics and Professionalism: Advice
from the Bench and Bar (2014)
2.0 EP
Video Replay
505-797-6020
www.nmbar.org
2015 Ethicspalooza: The Ethics of
Social Media Use
1.0 EP
Live Seminar and Webcast
505-797-6020
www.nmbar.org
5
Spotting & Preventing Fraud in
Real Estate Transactions
1.0 G
505-797-6020
www.nmbar.org
10
Reviewing and Drafting IT
Agreements
1.0 G
505-797-6020
www.nmbar.org
13
6
The 30th Annual Bankruptcy Year
in Review Seminar
6.0 G, 1.0 EP
505-797-6020
www.nmbar.org
12
Ethical Issues When Representing
the Elderly
1.0 EP
505-797-6020
www.nmbar.org
17-18 Fundamentals of Securities Law,
Parts 1–2
2.0 G
505-797-6020
www.nmbar.org
10
Oil and Gas: From the Basics to an
In-Depth Study (2014)
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
13
2015 Ethicspalooza: Ethically
Managing Your Practice
1.0 EP
505-797-6020
www.nmbar.org
20
10
13
2015 Ethicspalooza: All Those Fees
1.0 EP
505-797-6020
www.nmbar.org
23
Ethics for Transactional Lawyers
1.0 EP
505-797-6020
www.nmbar.org
13
24
2014 Employment and Labor Law
Institute
4.5 G, 1.5 EP
Video Replay
505-797-6020
www.nmbar.org
10
New Mexico Constitution—Current
Issues (2014)
2.0 G
Video Replay
505-797-6020
www.nmbar.org
10
Don’t Call Saul: ‘Breaking Bad’
Ethics (2014 Annual Meeting)
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
2015 Ethicspalooza: Proper Trust
Accounting
1.0 EP
505-797-6020
www.nmbar.org
13
2015 Ethicspalooza: Conflicts of
Interest
1.0 EP
505-797-6020
www.nmbar.org
13
2015 Ethicspalooza: Civility and
Professionalism
1.0 EP
505-797-6020
www.nmbar.org
The Impact of the Legal System on
People of Color
5.5 G, 1.0 EP
505-797-6020
www.nmbar.org
Internet Investigative/Legal
Research on a Budget and Legal
Tech Tips (2014)
6.0 G
Video Replay
505-797-6020
www.nmbar.org
24
Medical Malpractice Review Before
the New Mexico Medical Review
Commission (2014)
2.0 G, 3.0 EP
Video Replay
505-797-6020
www.nmbar.org
9
Legal Education
www.nmbar.org
March
24
Nonprofit Corporations
Compliance (2014)
3.5 G
Video Replay
505-797-6020
www.nmbar.org
24
Mock Meeting of the Ethics
Advisory Committee (2014)
2.0 EP
Video Replay
505-797-6020
www.nmbar.org
24-25 Sub-leasing & Assignments,
Parts 1–2
2.0 G
505-797-6020
www.nmbar.org
26
2015 Solo and Small Firm Institute:
Law Practice Management
3.0 G, 4.0 EP
505-797-6020
www.nmbar.org
27
2015’s Best Law Office Technology,
Software and Tools—Improve
Client Service, Increase Speed and
Lower Your Costs
4.8 G, 1.2 EP
505-797-6020
www.nmbar.org
27–28 Trial Skills College
14.5 G
Albuquerque
New Mexico Criminal Defense
Lawyers Association
505-992-0050
www.nmcdla.org
30
Fire in the Hole: What’s Exploding
in New Mexico Mining Law (2014)
5.5 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
30
How to Become a Rock Star Lawyer,
the Ethical Way (2014)
2.0 EP
Video Replay
505-797-6020
www.nmbar.org
30
VAWA 2013 and Tribal Jurisdiction
Over Crimes of Domestic Violence
(2014)
3.2 G
Video Replay
505-797-6020
www.nmbar.org
31
Exempt v. Non-exempt: Overtime
& Employer Liability in the
Workplace
1.0 G
505-797-6020
www.nmbar.org
30
2014 Intellectual Property Law
Institute
5.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
April
1
Innocent & injured Spouse
Defenses to Joint Tax Liability
1.0 G
505-797-6020
www.nmbar.org
14
Skeptically Determining the Limits
of Scientific Evidence V (2014)
5.0 G, 1.5 EP
Video Replay
505-797-6020
www.nmbar.org
Construction Lien Law in New
Mexico (2014)
3.0 G
Video Replay
505-797-6020
www.nmbar.org
7
14
14
Drafting Reps and Warranties in
Business Transactions
1.0 G
505-797-6020
www.nmbar.org
10
Navigating the Privileges Minefield
(2014)
5.5 G
Video Replay
505-797-6020
www.nmbar.org
14
The End of Law Firms: How the
Cloud is Changing the Practice of
Law and The ABA Model Rules with
Regard to the Changing Practice of
Law (2014 Annual Meeting)
1.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective February 13, 2015
Petitions for Writ of Certiorari Filed and Pending:
No. 35,122
No. 35,121
No. 35,120
No. 35,115
No. 35,114
No. 35,119
No. 35,118
No. 35,113
No. 35,111
No. 35,109
No. 35,107
No. 35,106
No. 35,105
No. 35,049
No. 35,108
No. 35,101
No. 35,097
No. 35,098
No. 35,095
No. 35,094
No. 35,093
No. 35,100
No. 35,092
No. 35,089
No. 35,090
No. 35,084
No. 35,088
No. 35,086
No. 35,085
No. 35,069
No. 35,060
No. 35,050
No. 35,046
No. 35,040
No. 35,039
No. 35,037
No. 35,099
No. 35,068
No. 34,949
No. 34,937
Date Petition Filed
Lente v. State
12-501 02/13/15
State v. Chakerian
COA 32,872 02/13/15
State v. DeLao
COA 33,870 02/10/15
State v. Garcia
COA 33,796 02/10/15
State v. Duran
COA 33,862 02/10/15
Lester v. Lester
COA 33,926 02/09/15
City of Albuquerque v.
Lester
COA 33,261 02/09/15
State v. Padilla
COA 33,887 02/09/15
Lea County v.
Markum Ranch
COA 32,510 02/05/15
Valenzuela v. N.M. Dept. of
Workforce Solutions
COA 34,231 02/05/15
State v. Villanueva
COA 34,092 02/04/15
Salomon v. Franco
12-501 02/04/15
Pena-Kues v.
Smith’s Food & Drug
COA 32,790 02/03/15
State v. Surratt
COA 32,881 02/02/15
Pena-Kues v.
Smith’s Food & Drug
COA 32,790 01/30/15
Dalton v. Santander
COA 33,136 01/28/15
Marrah v. Swisstack
12-501 01/26/15
Torres v. Hatch
12-501 01/23/15
State v. Romero
COA 34,162 01/23/15
State v. Venegas-Diaz
COA 33,106 01/23/15
State v. Lujan
COA 33,995 01/23/15
State v. Sheehan
COA 33,192 01/22/15
State v. Sandoval
COA 33,952 01/22/15
State v. Demory
COA 33,659 01/21/15
State v. Upchurch
COA 33,240 01/20/15
Branch v. State
12-501 01/16/15
Vine v. State
12-501 01/15/15
MoreNo. v. Hatch
12-501 01/13/15
Strand v. Janecka
12-501 01/12/15
Arencon v.
City of Albuquerque
COA 33,196 01/08/15
Response filed 1/23/15
Medina v. State
12-501 12/30/14
State v.
Hernandez
COA 32,110/32,109 12/22/14
Response ordered; due 2/27/15
Ramirez v. Ortiz
12-501 12/15/14
Montoya v. Wrigley
12-501 12/15/14
Ramirez v. Hatch
12-501 12/15/14
Graham v. Hatch
12-501 12/15/14
Keller v. Horton
12-501 12/11/14
Jessen v. Franco
12-501 11/25/14
State v. Chacon
COA 33,748 10/27/14
Pittman v.
N.M. Corrections Dept.
12-501 10/20/14
No. 34,932
No. 34,881
No. 34,913
No. 34,907
No. 34,885
No. 34,878
No. 34,777
No. 34,790
No. 34,765
No. 34,793
No. 34,775
No. 34,776
No. 34,748
No. 34,731
No. 34,739
No. 34,706
No. 34,691
No. 34,589
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Gonzales v. Sanchez
12-501
Paz v. Horton
12-501
Finnell v. Horton
12-501
Cantone v. Franco
12-501
Savage v. State
12-501
O’Neill v. Bravo
12-501
State v. Dorais
COA 32,235
Venie v. Velasquz
COA 33,427
Helfferich v. Frawner
12-501
Isbert v. Nance
12-501
State v. Merhege
COA 32,461
Serna v. Franco
12-501
Smith v. State
12-501
Helfferich v. Frawner
12-501
Holguin v. Franco
12-501
Camacho v. Sanchez
12-501
Wetson v. Nance
12-501
Response ordered; filed 7/14/14
Seager v. State
12-501
Benavidez v. State
12-501
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
10/16/14
10/08/14
09/22/14
09/11/14
09/08/14
08/26/14
07/02/14
06/27/14
06/24/14
06/23/14
06/19/14
06/13/14
06/06/14
05/29/14
05/21/14
05/13/14
05/07/14
04/23/14
02/25/14
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Certiorari Granted but not yet Submitted to the Court:
(Parties preparing briefs) 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. 34,363 Pielhau v. State Farm
No. 34,274 State v. No.len
No. 34,400 State v. Armijo
No. 34,443 Aragon v. State
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 31,899 11/15/13
12-501 11/20/13
COA 32,139 12/20/13
12-501 02/14/14
12-501 03/28/14
COA 32,862 04/11/14
11
Writs of Certiorari
No. 34,637
No. 34,694
No. 34,669
No. 34,650
No. 34,630
No. 34,789
No. 34,769
No. 34,786
No. 34,784
No. 34,805
No. 34,798
No. 34,843
No. 34,834
No. 34,772
No. 34,726
No. 34,668
No. 34,855
No. 34,728
No. 34,812
No. 34,886
No. 34,866
No. 34,854
No. 34,830
No. 34,826
No. 34,997
No. 34,993
No. 34,978
No. 34,946
No. 34,945
No. 34,940
No. 34,929
No. 35,063
No. 35,035
No. 35,029
No. 35,016
No. 35,005
No. 34,974
No. 34,995
State v. Serros
COA 31,975
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
Tran v. Bennett
COA 32,677
State v. Baca
COA 32,553
State v. Baca
COA 32,523
Silva v. Lovelace Health
Systems, Inc.
COA 31,723
King v.
Behavioral Home Care
COA 31,682
State v. Maestas
COA 31,666
State v. Lovato
COA 32,361
SF Pacific Trust v.
City of Albuquerque
COA 30,930
City of Eunice v. N.M. Taxation
and Revenue Dept.
COA 32,955
Deutsche Bank v.
Johnston
COA 31,503
State v. Vigil
COA 32,166
Rayos v. State
COA 32,911
Martinez v. Bravo
12-501
Ruiz v. Stewart
12-501
State v. Sabeerin COA 31,412/31,895
State v. Yazzie
COA 32,476
State v. Alex S.
COA 32,836
State v. Mier
COA 33,493
State v. Trammel
COA 31,097
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
Atherton v. Gopin
COA 32,028
State v. Kuykendall
COA 32,612
State v. Kuykendall
COA 32,612
State v. Flores
COA 32,709
Freeman v. Love
COA 32,542
State v. Carroll
COA 32,909
State v. Stephenson
COA 31,273
State v. Abeyta
COA 33,485
State v. Baca
COA 33,626
State v. Archuleta
COA 32,794
Moses v. Skandera
COA 33,002
State v. Deangelo M.
COA 31,413
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
08/15/14
08/15/14
08/29/14
08/29/14
08/29/14
08/29/14
09/26/14
10/10/14
10/10/14
10/10/14
10/24/14
10/24/14
10/24/14
10/24/14
10/24/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
01/26/14
01/26/14
01/26/14
01/26/14
01/26/14
01/26/14
02/06/15
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
No. 33,548 State v. Marquez
No. 33,808 State v. Nanco
No. 33,862 State v. Gerardo P.
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing
12
Submission Date
COA 30,565 04/15/13
COA 30,788 08/14/13
COA 31,250 08/14/13
COA 30,196 08/28/13
No. 33,898
Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502
No. 34,013 Foy v. Austin Capital
COA 31,421
No. 34,085 Badilla v. Walmart
COA 31,162
No. 34,146 Madrid v.
Brinker Restaurant
COA 31,244
No. 34,093 Cordova v. Cline
COA 30,546
No. 34,194/34,204
King v. Faber
COA 34,116/31,446
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297
No. 34,120 State v. Baca
COA 31,442
No. 34,122 State v. Steven B. consol. w/
State v. Begaye
COA 31,265/32,136
No. 34,286 Yedidag v.
Roswell Clinic Corp.
COA 31,653
No. 34,499 Perez v. N.M. Workforce
Solutions Dept. COA 32,321/32,330
No. 34,546 NM Dept. Workforce Solutions v.
Garduno
COA 32,026
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. 34,501 SNo.w v. Warren Power COA 32,335
No. 34,607 Lucero v.
Northland Insurance
COA 32,426
No. 34,554 Miller v.
Bank of America
COA 31,463
No. 34,516 State v. Sanchez
COA 32,994
No. 34,613 Ramirez v. State
COA 31,820
No. 34,548 State v. Davis
COA 28,219
No. 34,526 State v. Paananen
COA 31,982
No. 34,549 State v. Nichols
COA 30,783
09/11/13
10/28/13
11/14/13
12/04/13
12/09/13
01/15/14
02/24/14
03/26/14
03/26/14
08/11/14
08/11/14
08/13/14
08/13/14
08/27/14
08/27/14
09/24/14
10/01/14
10/29/14
11/10/14
12/17/14
12/17/14
01/14/15
01/14/15
02/25/15
Dispositional Order on Writ of Certiorari:
No. 34,476
State v. Pfauntsch
Date Order Filed
COA 31,674 02/09/15
Petition for Writ of Certiorari Denied:
No. 35,083
No. 35,082
No. 35,080
No. 35,079
No. 35,076
No. 35,073
No. 35,070
Partida v.
Motor Vehicle Division
State v. Williams
State v. Barela
State v. McKnight
Begay v.
Consumer Direct
State v. Butler
State v. Acosta
Date Order Filed
COA 33,698
COA 33,869
COA 34,034
COA 33,872
02/12/15
02/12/15
02/12/15
02/12/15
COA 33,288 02/12/15
COA 33,696 02/12/15
12-501 02/12/15
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Published Opinions
No. 31935 1st Jud Dist Santa Fe CV-10-420, L NOICE v BNSF RAILWAY COMPANY (reverse)
2/10/2015
Unublished Opinions
No. 33565 13th Jud Dist Valencia JQ-12-01, CYFD v ANDREA L (affirm)
2/09/2015
No. 33909 3rd Jud Dist Dona Ana CR-12-287, STATE v O OROPEZA (reverse)
2/09/2015
No. 33953 5th Jud Dist Lea CR-12-565, STATE v J HALL (affirm)
2/09/2015
No. 34062 1st Jud Dist Santa Fe CV-11-3710, V ARELLANO v NM DEPT OF HEALTH (reverse)
2/09/2015
No. 33354 1st Jud Dist Santa Fe DM-09-988, L LOPEZ v J GONZE (reverse and remand)
2/10/2015
No. 33728 3rd Jud Dist Dona Ana LR-14-9, STATE v PAUL REYES (affirm)
2/10/2015
No. 34013 6th Jud Dist Luna CR-11-223, STATE v D MCBRIDE (affirm)
2/10/2015
No. 34151 11th Jud Dist San Juan CV-14-6, NATIONAL EDUCATION CENTRAL (dismiss)
2/10/2015
No. 33969 12th Jud Dist Lincoln CR-13-61, STATE v A RAMOS (reverse)
2/11/2015
No. 33886 12th Jud Dist Otero CR-10-345, STATE v R CASTRO (affirm)
2/12/2015
No. 33905 12th Jud Dist Lea JQ-2012-24, CYFD v MARY S (dismiss)
2/12/2015
No. 33987 2nd Jud Dist Bernalillo LR-12-10, STATE v T PERALTA (affirm)
2/12/2015
No. 34002 2nd Jud Dist Bernalillo LR-12-100, STATE v R NAJAR (affirm)
2/12/2015
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
13
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 February 3, 2015:
Jude A. Cisneros
9950 Campo Road, Suite 101
Spring Valley, CA 91977
Harry G.W. Griffith Jr.
33903 Cripple Creek Drive
Pinehurst, TX 77362
Edward J. Hendrick Jr.
1216 ParView Drive
Sanibel, FL 33957
Steven J. Kuehl
7887 E. Belleview Avenue,
Suite 1100
Denver, CO 80111
of Reinstatement to
Active Status
As of February 5, 2015:
Corrie Lynn Gerdts-Darr
2001 Caballo Trail
Brownwood, TX 76801
512-571-0912
cgdarr@gmail.com
Robert Y. Hirasuna
15 Tano Norte
Santa Fe, NM 87506
505-983-1671
rhirasuna@yahoo.com
Effective January 30, 2015:
Cole B. Stinson
1684 Stockley Lane
Old Hickory, TN 37138
445 Jena Road
Hon. Hector H. Balderas
Office of the Attorney General
PO Box 1508
408 Galisteo Street (87501)
Santa Fe, NM 87504-1508
505-827-6000
505-827-5826 (fax)
hbalderas@nmag.gov
Nicole Beder
7150 Old Santa Fe Trail
Santa Fe, NM 87505
917-204-4095
nicbeder@yahoo.com
14
of Change to Inactive
Status
Meryl Elizabeth Francolini
Clark County District
Attorney’s Office
3412 Lockport Street
Las Vegas, NV 89129
Tara Selver
16 Raft Island Drive NW
Gig Harbor, WA 98335
of Address and/or
Telephone Changes
The clerk’s certificate of address and telephone changes
dated January 16, 2015, reported an incorrect telephone
number for Fermin A. Rubio:
Fermin A. Rubio
N.M. State UniversityOffice of General Counsel
MSC 3UGC - PO Box 30001
2850 Weddell Road, Hadley
Hall Room 135
Las Cruces, NM 88003-8001
575-646-2446
575-646-3012 (fax)
frubio@nmsu.edu
Anna Sibylle Ehresmann
PO Box 56773
Albuquerque, NM 87187-6773
Jennifer R. Petersen
19326 Spencer Street
Elkhorn, NE 68022
Dated Feb. 9, 2015
of Correction
M. Catherine Hayden
800 Ridgecrest Drive SE
Albuquerque, NM 87108
Hilary Lamberton
PO Box 6933
Santa Fe, NM 87502-6933
Sara Jane Powell
Law Office of
Sara J. Powell PLLC
550 W. Portland Street
Phoenix, AZ 85003
Stefanie Lee Kyser
Kyser Law Firm, LLC
PO Box 9007
Santa Fe, NM 87504-9007
Hon. Robert Hayes Scott
U.S. District Court District of New Mexico
333 Lomas Blvd. NW, Suite 620
Jiehoon Lee
360 S. Alvarado Street, Suite 6
Los Angeles, CA 90057
Effective December 31, 2014:
Bret G. Saxe
401 4th Street NE
Washington, DC 20002
Hon. Lyndy D. Bennett
Eleventh Judicial District Court
207 W. Hill Avenue, Suite 200
Gallup, NM 87301
505-726-2062
505-726-5744 (fax)
Scott Fuqua
Fuqua Law & Policy, PC
PO Box 32015
Santa Fe, NM 87594-2015
505-982-0961
scott@fuqualawpolicy.com
Thomas E. Hare
Law Offices of the Public
Defender
2395 N. Florida Avenue
Alamogordo, NM 88310
575-551-7209
Tara Lynne Edgmon
Office of the Seventh Judicial
District Attorney
855 Van Patten Street
Truth or Consequences, NM
87901
575-894-9033
575-894-9034 (fax)
tedgmon@da.state.nm.us
Michelle S. Garcia
Office of the Second Judicial
District Attorney
520 Lomas Blvd. NW
505-222-1139
505-241-1000 (fax)
migarcia@da2nd.state.nm.us
Andrea D. Harris
Carter & Valle Law Firm
8012 Pennsylvania Circle NE
505-888-4357
505-883-5613 (fax)
adh@carterlawfirm.com
Gail A. Heglund
710 N. Washington Street
Bismarck, ND 58501
505-463-0175
gailannbrown@aol.com
Twila A. Hoon
The Law Offices of Ramsey
& Hoon, LLC
PO Box 25392
116 Granite Avenue NW
(87104)
505-633-9017
888-878-1486 (fax)
twilahoon@rhnmlaw.com
Lisa C. Krenkel
Krenkel & Krenkel, LLC
107 Main Street
Allenhurst, NJ 07711
732-531-9300
732-531-9317 (fax)
lisa@krenkellaw.com
Brenda M. Maloney
Quarles & Brady, LLP
1700 K Street NW, Suite 825
Washington, DC 20006
202-372-9526
202-372-9599 (fax)
brenda.shafer@quarles.com
LynneAnne Maxwell
Rose L. Brand & Associates, PC
7430 Washington Street NE
505-833-3036
lynneanne.maxwell@
roselbrand.com
Hon. Cindy M. Mercer
Thirteenth Judicial District
Court
PO Box 1089
1835 Highway 314 SW
Los Lunas, NM 87031
505-865-0108
505-866-6813 (fax)
Robert David Pederson
Office of the Thirteenth
Judicial District Attorney
PO Box 637
515 W. High Street
Grants, NM 87020-0637
505-285-4627
505-285-4629 (fax)
rpederson@da.state.nm.us
Jennifer Michelle Perkins
Office of the Arizona
Attorney General
1275 W. Washington Street
Phoenix, AZ 85007
602-542-7826
jennifer.perkins@azag.gov
Robin L. Cooley
Earthjustice
633 17th Street, Suite 1600
Denver, CO 80202
303-623-9466
303-623-8083 (fax)
rcooley@earthjustice.org
Simone M. Seiler
NM Human Services
Department
455 Camino Del Rey, #C
Los Lunas, NM 87031
505-222-0855
simone.seiler@state.nm.us
Timothy L. Hartley
201 Laurence Drive #208
Heath, TX 75032
972-754-4844
972-722-4888
tlhartleylaw@aol.com
Michelle Renee Torres
3614 Headingly Avenue NE
505-681-6982
reneetorres9@gmail.com
Richard B. Wellborn
Richard Wellborn,
Attorney at Law, LLC
1990 E. Lohman Avenue,
Suite 204
Las Cruces, NM 88001
575-524-6867
rickwellborn@
rickwellbornlaw.com
Roger E. Yarbro
Yarbro & Associates, PA
12231 Academy Road NE,
Suite 301, PMB 249
505-433-5716
505-212-0464 (fax)
reyarbro@tularosa.net
Laurie McFarland
3636 Goldstone Drive
Idaho Falls, ID 83401
208-419-1546
Adam D. Melton
Langley LLP
2001 E. Campbell Avenue,
Suite 203
Phoenix, AZ 85016
602-428-7338
602-795-6077 (fax)
amelton@l-llp.com
Roger Moore
PO Box 1441
505-255-2900
505-255-2545 (fax)
rogermoore007.2@juno.com
Flynn Evelyn Sylvest
160 Longhorn Lane
Ojai, CA 93023
505-306-9511
flynnsylvest@gmail.com
Orlando R. Lopez
Lopez Scott, LLC
3707 N. St. Mary’s Street,
Suite 200
San Antonio, TX 78212
210-472-2100
210-472-2101 (fax)
olopez@lopezscott.com
Kevin J. McCready
(kmccready@moplaw.com)
J. Matthew Myers
(mmyers@moplaw.com)
John A. Myers
(jmyers@moplaw.com)
Myers, McCready & Myers, PC
1401 Central Avenue NW,
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17
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Certiorari Denied, November 21, 2014, No. 34,910
Opinion Number: 2015-NMCA-005
MONICA LUJAN, as Personal Representative of the Estate of PEGGY LUJANSILVA, Decedent,
Plaintiff-Appellant,
v.
NEW MEXICO DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee
Docket No. 31,883 (filed August 4, 2014)
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
BARBARA J. VIGIL, District Judge
PAUL MAESTAS
MAESTAS & SUGGETT, P.C.
Albuquerque, New Mexico
for Appellant
PETER J. GOULD
Santa Fe, New Mexico
for Appellee
KATHERINE A. BASHAM
BASHAM & BASHAM, P.C.
Opinion
Michael E. Vigil, Judge
{1}Monica Lujan (Plaintiff), as personal
representative of Peggy Lujan-Silva (Decedent), sued the New Mexico Department
of Transportation (the Department) for
wrongful death arising from a single-car
accident, alleging that the Department’s
negligent failure to keep the roadway clear
of dangerous debris caused the accident.
The district court granted the Department’s motion for summary judgment. We
reverse.
BACKGROUND
{2}On October 29, 2004, Decedent was
driving south on Interstate-25 (I-25) adjacent to the exit ramp for the St. Francis
Road exit at approximately 2:00 p.m. when
she encountered pieces of semi-truck tire
debris on the roadway, and either struck
the debris or swerved to avoid it. Decedent
lost control of her vehicle, and it went into
an uncontrolled slide and flipped four
times, ejecting Decedent from the vehicle.
Decedent died at the scene. The roadway
at the location of the accident is straight
and level, and at the time of the accident
18
the weather was clear, the pavement was
dry, and the center and the edge lines
were clearly marked. There is no evidence
of precisely how long the tire debris was
on the roadway, and the Department had
no actual notice of the tire debris at that
location prior to the accident.
{3} The Department moved for summary
judgment, asserting that the undisputed
material facts demonstrate that the Department had no actual notice or constructive notice of the tire debris. It being
undisputed that the Department had no
actual notice, the Department contended
that it had no constructive notice of the
debris because Plaintiff was unable to pinpoint how long the debris was on the road
where the accident took place. Plaintiff ’s
response centered on its contention that
the Department was negligent in failing
to identify debris on the highway in a
timely manner and that the Department’s
inspection protocols are unreasonably lax
and not complied with.
{4}The district court granted summary
judgment in favor of the Department on
the grounds that the Department did not
have actual or constructive notice of the
tire debris and that Plaintiff ’s argument
that the Department’s failure to have a
stronger or more consistent policy for the
removal of debris was too speculative to
prove proximate cause. Plaintiff appeals,
asserting that the summary judgment order must be reversed because: (1) there are
factual issues about whether the Department breached its duty to locate the tire
debris on the roadway, and (2) there are
factual issues regarding proximate cause.
STANDARD OF REVIEW
{5} On appeal, our review of an order
granting summary judgment is de novo.
Summers v. Ardent Health Servs., L.L.C.,
2011-NMSC-017, ¶ 10, 150 N.M. 123,
257 P.3d 943. We affirm an order granting summary judgment when there is
no evidence raising a reasonable doubt
about any genuine issue of material fact,
and the moving party is entitled to judgment as a matter of law. Self v. United
Parcel Serv., Inc., 1998-NMSC-046, ¶ 6,
126 N.M. 396, 970 P.2d 582. Thus, “the
movant has the burden of showing a
complete absence of any genuine material issue of fact and that such party is
entitled to judgment as a matter of law.”
Durham v. Sw. Developers Joint Venture,
2000-NMCA-010, ¶ 42, 128 N.M. 648,
996 P.2d 911. “[O]nce the movant makes
a prima facie showing that he is entitled
to summary judgment, the burden
shifts to the party opposing the motion
to demonstrate the existence of specific
evidentiary facts which would require
trial on the merits.” Cain v. Champion
Window Co. of Albuquerque, LLC, 2007NMCA-085, ¶ 7, 142 N.M. 209,164 P.3d
90 (internal quotation marks and citation
omitted). In our de novo review of the
summary judgment record, “[w]e resolve
all reasonable inferences in favor of the
non-movant and view the pleadings,
affidavits, depositions, answers to interrogatories, and admissions in a light most
favorable to a trial on the merits.” Id. ¶
6. We do so because New Mexico courts
“view summary judgment with disfavor,
preferring a trial on the merits.” Romero
v. Philip Morris, Inc., 2010-NMSC-035,
¶ 8, 148 N.M. 713, 242 P.3d 280.
DISCUSSION
{6}Plaintiff ’s complaint against the
Department is for negligence under the
roadway maintenance exception of the
Tort Claims Act, NMSA 1978, § 41-411(A) (1991), which waives sovereign
immunity for damages caused by the
government’s negligent maintenance of
Advance Opinions
highways. Plaintiff ’s negligence action
falls under this exception because “the
identification and remediation of roadway
hazards constitutes maintenance under
Section 41-4-11.” Rutherford v. Chaves
Cnty., 2003-NMSC-010, ¶ 25, 133 N.M.
756, 69 P.3d 1199.
{7} NMSA 1978, Section 41-4-2(B)
(1976) of the Tort Claims Act provides in
part that liability under the Act “shall be
based upon the traditional tort concepts of
duty and the reasonably prudent person’s
standard of care in the performance of
that duty.” Thus, liability under the Act
is “premised on traditional concepts of
negligence.” Brenneman v. Bd. of Regents
of Univ. of N.M., 2004-NMCA-003, ¶ 10,
135 N.M. 68, 84 P.3d 685 (quoting Methola
v. Cnty. of Eddy, 1980-NMSC-145, ¶ 19,
95 N.M. 329, 622 P.2d 234 ). See Silva v.
State, 1987-NMSC-107, ¶ 47, 106 N.M.
472, 745 P.2d 380 (Stowers, J., dissenting) (“The phrase ‘traditional concepts of
duty and the reasonably prudent person’s
standard of care, . . . refers to theories of
negligence.”), limited on other grounds by
Archibeque v. Moya, 1993-NMSC-079,
¶ 14, 116 N.M. 616, 866 P.2d 344. “It is
axiomatic that a negligence action requires that there be a duty owed from the
defendant to the plaintiff; that based on a
standard of reasonable care under the circumstances, the defendant breached that
duty; and that the breach was a cause in
fact and proximate cause of the plaintiff ’s
damages.” Romero v. Giant Stop-N-Go of
N.M., Inc., 2009-NMCA-059, ¶ 5, 146
N.M. 520, 212 P.3d 408. The absence of
any of these elements is fatal to a plaintiff ’s claim. Id. We address each of these
elements in turn.
1.Duty
{8}Whether the defendant owes a duty
to the plaintiff, is a legal question for the
courts to decide. Id. ¶¶ 5-6. In Rodriguez v.
Del Sol Shopping Ctr. Assocs., 2014-NMSC014, ___ P.3d ___ (Nos. 33,896 and 33,949,
May 8, 2014), our Supreme Court recently
corrected inconsistences in New Mexico
case law on how courts are to determine
whether a legal duty is owed. The Court
held that “[f]oreseeability is not a factor
for courts to consider when determining
the existence of a duty[.]” Id. ¶ 1. We follow
that holding in this case.
{9}In Lerma v. State Highway Department
of New Mexico, our Supreme Court stated
that “the Department has a duty to exercise ordinary care in the maintenance of
its highways.” 1994-NMSC-069, ¶ 11, 117
N.M. 782, 877 P.2d 1085. However, the Le-
rma Court framed the duty inquiry around
protecting the public from “foreseeable
harm” on New Mexico’s roadways. Id. ¶ 8.
Our appellate courts have continued to use
Lerma’s foreseeability of harm language in
negligent roadway maintenance cases. See,
e.g., Rutherford, 2003-NMSC-010, ¶ 12
(“[The government entity] has the common law duty to exercise ordinary care to
protect the general public from foreseeable
harm on its roadways.”); accord Ryan v.
N.M. State Highway & Transp. Dep’t, 1998NMCA-116, ¶ 12, 125 N.M. 588, 964 P.2d
149.
{10} Furthermore, in cases where the
government did not itself create the condition, New Mexico’s negligent highway
maintenance case law was developed to
examine not just whether harm was generally foreseeable, but also whether the
government had notice of the particular
dangerous condition at issue. See Blackburn v. State, 1982-NMCA-073, ¶ 32, 98
N.M. 34, 644 P.2d 548 (“[W]here the State
has not created the dangerous condition,
no duty to remedy the dangerous condition arises until actual or constructive
notice is present.”). Thus, the inquiry into
the government’s duty to exercise ordinary
care in the maintenance of its roadways has
been fact-intensive, focusing on whether
the government entity had actual or
constructive notice under the specific circumstances of the case. See, e.g., Martinez
v. N.M. Dep’t of Transp., 2013-NMSC-005,
¶¶ 41-50, 296 P.3d 468 (determining that
the Department’s duty to erect barriers
depended upon whether it had notice
that collisions occurred along the stretch
of highway where the collision at issue
occurred); Ryan, 1998-NMCA-116, ¶ 7
(determining that the Department’s duty
depended upon whether it had actual or
constructive notice of wild animal crossings creating a dangerous condition on a
particular stretch of highway).
{11}In Rodriguez, our Supreme Court
rejected such a fact-intensive inquiry
to determine whether a duty exists. See
Rodriguez, 2014-NMSC-014, ¶¶ 1, 3,
11 (holding that “[f]oreseeability is a
fact-intensive inquiry relevant only to
breach of duty and legal cause considerations. . . . not [to] whether a duty exists”
and overruling prior cases insofar as
they conflict with the appropriate duty
analysis). The Court also warned that
foreseeability can mask itself behind
other terms. See id. ¶¶ 12-13 (explaining
that considering the “remoteness” of a
potential harm, by inviting a discussion
of the particularized facts in the case,
is essentially a foreseeability driven
analysis). Thus, we do not consider
“actual or constructive notice” of the
tire debris Decedent encountered as
determinative of the Department’s duty
to Decedent.
{12} Nevertheless, the Department’s duty
in this case is settled: the government has
“the duty to maintain roadways in a safe
condition for the benefit of the public.”
Martinez, 2013-NMSC-005, ¶ 18. This
includes a duty to conduct reasonable
inspections of roadways, of which identification and removal of dangerous debris
from roadways are necessary corollaries.
See Blackburn, 1982-NMCA-073, ¶¶ 17,
32 (stating that liability for a dangerous
condition on a roadway involves situations
“in which the State did not create the dangerous condition, but knew or should have
known about it, and corrected it”); see also
Rutherford, 2003-NMSC-010, ¶ 12 (“The
identification of hazards on roadways is
essential if governmental entities are to
fulfill their responsibilities of keeping the
highways safe for the motoring public.”).
We therefore conclude that the Department owed a duty to Decedent to identify
and remove dangerous debris from the
highway.
2.Breach
{13} “The responsibility for determining
whether the defendant has breached a duty
owed to the plaintiff entails a determination of what a reasonably prudent person
would foresee, what an unreasonable
risk of injury would be, and what would
constitute an exercise of ordinary care in
light of all the surrounding circumstances.”
Pollock v. State Highway & Transp. Dep’t,
1999-NMCA-083, ¶ 11, 127 N.M. 521,
984 P.2d 768 (alteration, internal quotation marks, and citation omitted). One
can be negligent by either acting or failing
“to do an act which one is under a duty
to do and which a reasonably prudent
person, in the exercise of ordinary care,
would do in order to prevent injury.” UJI
13-1601 NMRA. Ordinary care is “that
care which a reasonably prudent person
would use in the conduct of the person’s
own affairs.” UJI 13-1603 NMRA. What
constitutes ordinary care will vary under
the circumstances. Id. “As the risk of danger that should reasonably be foreseen
increases, the amount of care required
also increases.” Id. All of the surrounding
circumstances should be considered when
evaluating whether ordinary care was
used. Id.
19
Advance Opinions
{14} The Department argued that it
owed Decedent no duty to clear the debris
because it had no actual or constructive
knowledge of its presence at the particular
location and the particular time that the
accident occurred. Following Rodriguez,
and having concluded that the Department had a duty in this case, we consider
notice to determine whether there is a
question of fact as to whether the Department breached its duty of reasonable inspection. See Martinez, 2013-NMSC-005,
¶ 21 (“[T]he term maintenance requires a
reasonable response to a known dangerous condition on a roadway.” (emphasis
added)); Blackburn, 1982-NMCA-073, ¶
17 (stating the plaintiff must prove that the
defendant “had actual or constructive notice of the dangerous condition a sufficient
time prior to the time of the accident so
that measures could have been taken to
protect against the dangerous condition”).
{15} Here, although it is undisputed that
the Department had no actual notice of the
particular debris at issue, the Department
does not argue that it was not aware of
the risk to motorists that roadway debris
creates generally. Indeed, in the Department’s motion for summary judgment,
it acknowledged that its maintenance
responsibilities include identifying and
removing hazardous litter from roadways.
Thus, the issue before us in this case is
whether there are material issues of fact
about whether the Department can be
charged with constructive notice of the
tire debris. See Phillips v. N.C. Dep’t of
Transp., 684 S.E.2d 725, 731 (N.C. Ct. App.
2009) (stating that constructive notice “is
defined as information or knowledge of a
fact imputed by law to a person (although
he may not actually have it), because he
could have discovered the fact by proper
diligence, and his situation was such as to
cast upon him the duty of inquiring about
it.” (quoting State v. Poteat, 594 S.E.2d 253,
255-56 (N.C. Ct. App. 2004)); Kemer v.
Ohio Dep’t of Transp., No. 09AP-248, 2009
WL 3495006, at * 5 (Ohio Ct. App. Oct. 29,
2009) (“Constructive notice of a defective
condition can be imputed to a defendant
when the plaintiff presents evidence establishing that the defect could or should
have been discovered.”).
{16} The depositions of the Department’s employees who were responsible
for maintaining the stretch of road where
the accident occurred are sufficient for us
to determine whether summary judgment
was properly granted to the Department.
Edward Martinez is the Department’s main20
tenance supervisor for the Santa Fe area.
He reports to Mark Anaya, the area maintenance supervisor which includes Santa
Fe County. Mark Anaya’s supervisor in
turn is Miguel Gabaldon, the maintenance
engineer, and Mr. Gabaldon in turn reports
to John McElroy, the District 5 engineer.
{17} Mr. Martinez is in charge of all
maintenance of state highways in the
area where the accident occurred. His
responsibilities include litter pickup as
well as repair of potholes, signs, guardrails,
fences, snow removal, and traffic control
at accidents. However, he has received no
training regarding procedures for removal
of litter or debris from state highways and,
before this accident, to his knowledge, no
members of his crew received training on
removal of debris or litter from roadways.
{18} His crew members are responsible
for removing debris from the highway
within a “reasonable amount of time”—
within two hours—once they are notified
of debris on the highway. In addition, his
crew is told to remove debris, such as a
tire tread, from the highway when they
actually see it, whether or not they are
performing their duties at the time. On
the day of the accident, two crew members
passed the scene of the accident on their
way to work, sometime before 7:30 a.m.
when their shift started, and they did not
report seeing any debris on the highway at
the accident scene.
{19} According to Mr. Martinez, the
Department has an obligation to patrol
highways with enough frequency to locate
debris on the highway that is not reported
in a call to the Department. Thus, the
Highway Maintenance Management System (HMMS) Handbook requires “litter
pick up” which “means to go out there and
pick up litter in right of way fences of New
Mexico DOT.” However, there is no specification in the HMMS Handbook as to how
often to conduct “litter pick up.” Moreover,
although Mr. Martinez recognizes that a
highway with dangerous debris on it has
a greater chance for an accident than a
highway with less traffic, he has not made
a set schedule for doing litter pick up, and
it is performed randomly at his discretion.
{20} The HMMS Handbook also requires
that “road patrols” be conducted, and if tire
tread is encountered during a road patrol,
it is to be picked up. However, the HMMS
Handbook in effect on the day of the accident did not specify how often a road patrol should be conducted, even on a heavily
traveled road such as I-25. The daily work
reports which he or his assistant prepares
every day show that between October 25
and October 29, 2004, his crew performed
no work in the area around I-25 and the St.
Francis exit. He also cannot tell from the
daily work reports when a road patrol was
last performed by the Department where
the accident occurred before October 29,
2004. In fact, Mr. Martinez did nothing to
identify and remove debris from the highway, other than to remove debris actually
reported to the Department, although he
recognizes that the Department also has
an obligation, at some point, to remove
dangerous debris from the highway that
is not reported.
{21} Mr. Martinez’s supervisor is Mark
Anaya, the area maintenance supervisor
for the Santa Fe area. Mr. Anaya agrees
that the Department is responsible for
keeping highways safe for the motoring
public, and this includes removing hazards from the highway. Its responsibility
notwithstanding, Mr. Anaya is unaware
of any administrative directives put out
by the Department that outline a policy
for dealing with debris in roadways that
create hazards to the motoring public.
{22} Mr. Anaya testified that the Department has a duty to remove hazards that
are reported to exist in the highway. The
Department also has an obligation to conduct road patrols to go out and discover
unreported road hazards. At some point,
the Department should discover an unreported hazard, but he cannot state how
long—one hour, one day, one week, or one
month—before it is unacceptable for the
hazard to remain undiscovered.
{23} These duties notwithstanding, he
has never considered requiring an employee to drive every day in both directions
of the area of I-25 under his supervision to
make sure there are no hazards or dangerous conditions in the highway due to the
volume of traffic it handles. Furthermore,
he cannot say that Mr. Martinez’s crew
performs daily visual inspections of I-25
where the accident occurred, and he cannot tell when, before October 29, 2004,
Mr. Martinez’s crew last performed a road
patrol on I-25 in the area of the accident.
The only documented litter pick up done in
the area was by an inmate crew on October
28, 2004.
{24} Miguel Gabaldon is the Department
maintenance engineer for the area where
the accident occurred. He said there is no
written standard of care in the HMMS
Handbook regarding removal of debris
from state highways. However, he testified
the Department satisfies its obligation to
Advance Opinions
remove debris from the highways, such as
the tire debris in this case, by requiring the
Department workers to remove it if they
see it while performing their duties, and by
removing it as soon as possible upon being
notified of such debris. As to unreported
debris, such as the tire debris in this case,
Mr. Gabaldon stated that the Department
should find it “[w]ithin a reasonable time
frame” if the Department employees are
doing their patrols. In this regard, while
the Department has no criteria for how
often a highway maintenance crew worker
should drive the highways, the HMMS
Handbook does specify that the supervisor (Mr. Martinez) is to drive or patrol all
of the roads he is responsible for once per
week, if possible. Mr. Gabaldon said that
according to the HMMS Handbook, the
last documented patrol of the accident
scene should have been the week before the
accident by Mr. Martinez, the supervisor.
{25} John McElroy was the District 5 engineer for the Department. Before October
2004, the means for identifying road debris
in District 5 consisted of road patrols by
the Department personnel going to work
sites, and notification to the Department
by a member of the public or a police
agency. Mr. McElroy believes there are
signs placed on the highway with a 1-800
number to call, although he does not know
where such signs are placed.
{26} Mr. McElroy testified that before
October, 2004, there was a big problem
with a lot of debris on this stretch of I-25
where the accident occurred. Because of
this problem, the area should have been
given a lot of priority in terms of where
maintenance crews were performing their
patrols. From his perspective, the Santa Fe
patrol crew should have been conducting
litter pickup on this stretch of I-25 on a
regular basis, probably twice per week.
However, before October 2004, the patrol
supervisor was not required to travel on
I-25 where the accident occurred to survey
the roadway for debris that might present
a hazard or danger.
{27} Mr. McElroy testified that if the Department has actual notice that semi-truck
debris is on the highway, it is “probably not”
acceptable for the debris to remain on the
highway for one hour. If the Department
has no actual notice of such debris, it is not
acceptable, according to Mr. McElroy, for
it to remain on the roadway for one day,
twelve hours, or even six hours before the
Department identifies and removes it. It is
unknown how long the tire debris was on
the highway in this case before the accident.
{28} The foregoing evidence notwithstanding, the Department points to daily
work reports, which it asserts show that
between January 1, 2004, and the date of
the accident on October 29, 2004, six hundred and seventy-six “separate activities”
were logged and that one hundred fiftyseven “separate litter pickup activities”
were performed on I-25 “between Glorieta
and La Bajada Hill,” which includes the
area where the accident occurred. Moreover, according to the Department, these
same daily work reports show that in the
twenty-nine days prior to the accident,
the Santa Fe Patrol performed ten litter
pickup activities “within a few miles of
the accident location” and five road patrols
between Glorieta and La Bajada Hill. These
included “five separate litter pickup activities, all within five miles of the accident
location” between October 25, 2004, and
the date of the accident. In addition to
the foregoing, the Department states that
under contract with the Department of
Corrections, inmate crews performed litter
pickup “at or near the accident location”
on thirty-five separate locations between
January 17, 2003, and November 10, 2005,
and that “one of these events” was the day
before the accident.
{29} We conclude that the foregoing evidence raises issues of fact as to whether the
Department had constructive notice of the
tire debris and whether the Department
breached its duty to Decedent to timely
identify it and remove it. Specifically, the
evidence presents issues of fact about
whether the Department failed to exercise ordinary care in its duty to perform
reasonable inspections of the roadway
and remove dangerous tire debris from
it by: (1) failing to provide its employees
and supervisors with adequate training to
remove litter or debris from the highway;
(2) failing to patrol the highway with sufficient frequency to locate and remove
dangerous debris from the highway; (3)
failing to comply with its own standards on
how often the highway should be patrolled;
(4) failing to locate and remove the tire
debris in a timely manner; (5) failing to
have an adequate system by which it can
be notified of debris on the highway. Thus,
whether the Department had constructive
notice of the tire debris is a question of
fact for the jury to decide. See Rutherford, 2003-NMSC-010, ¶ 15 (“Whether
a governmental entity exercises ordinary
care in the identification of the hazard is
a question of fact for the jury.”); Herrera
v. Quality Pontiac, 2003-NMSC-018, ¶
33, 134 N.M. 43, 73 P.3d 181 (refusing to
address whether the defendant breached
the duty of ordinary care because it is a
question of fact for the jury); Ryan, 1998NMCA-116, ¶ 8 (stating constructive
notice is a question of fact); cf. Martinez,
2013-NMSC-005, ¶ 41 (“Notice becomes
a question of law only if no room for
ordinary minds to differ exists.” (internal
quotation marks and citation omitted)).
{30} The Department nevertheless argues
that because it is unknown how long the
tire debris was actually on the road before
the accident occurred, and imputing constructive notice of a danger depends on
how long the dangerous hazard was present, it is entitled to summary judgment.
We disagree. Ortega v. Kmart Corp., 36
P.3d 11, 13 (Cal. 2001), acknowledged that
in a premises liability case, a plaintiff has
the burden of proving that the business
owner had actual or constructive notice of
the defect in sufficient time to correct it.
In light of this requirement, the question
presented in that case was:
If the plaintiff has no evidence
of the source of the dangerous
condition or the length of time
it existed, may the plaintiff rely
solely on the owner’s failure to
inspect the premises within a reasonable period of time in order
to establish an inference that the
defective condition existed long
enough for a reasonable person
exercising ordinary care to have
discovered it?
Id. The court held: “[E]vidence of the owner’s failure to inspect the premises within
a reasonable period of time is sufficient
to allow an inference that the condition
[existed] long enough to give the owner
the opportunity to discover and remedy
it.” Id. We agree. When there is a duty to
inspect, evidence showing that there was
a failure to inspect within a reasonable
period of time under the circumstances
is evidence that the dangerous condition
could or should have been discovered
but for the untimely inspection. “Where
a condition has existed for such a length
of time that the public entity might have
known of the condition by the exercise of
reasonable care and diligence, constructive
notice exists.” Mtengule v. City of Chicago,
628 N.E.2d 1044, 1048 (Ill. App. Ct. 1993).
{31} The foregoing principles were applied in Imburgia v. Ohio Department of
Transportation, 114 Ohio Misc.2d 38, 759
N.E.2d 482 (Ohio Ct. Cl. 1999), a “Decision of Liability” made by a trial judge
21
Advance Opinions
sitting on the Ohio Court of Claims.
After the car in which the plaintiff was
a passenger pulled over onto a highway
median with a flat tire, she got out of the
car and stepped into an electrical junction
box, severely injuring her left foot, ankle,
and calf. Id. at 40-41, 759 N.E. at 484.
These boxes are cylindrical in shape and
recessed into the ground in the median
next to roadway lights with underground
lighting circuit cable splices. Id. at 40, 759
N.E.2d at 484. They are normally covered
with a concrete lid, but the concrete lid
on this box was broken and had partially
fallen into the junction box, which was
cluttered with additional debris. Id. at
40-41, 759 N.E.2d at 484. The court first
determined that the Ohio Department
of Transportation (ODOT) had a duty to
maintain the electrical boxes as part of its
duty to maintain the roadways in a reasonably safe condition. Id. at 41, 759 N.E.2d
at 485. The ODOT had no actual notice
that the concrete lid covering the box was
damaged, and the case turned on whether
the ODOT was charged with constructive
notice of the damage. Id. at 42, 759 N.E.2d
at 486. The ODOT had no policy regarding
routine inspection of the boxes, but it had
actual notice that mowers had previously
damaged such boxes in other locations,
and upon becoming aware that a concrete
lid was broken, it would make the necessary repairs. Id. at 4, 759 N.E.2d at 485-86.
Given the condition of the box, and its
concrete lid, and the apparent length of
time that the debris had accumulated in
the box, the court concluded, as a fact
finder, that the ODOT had constructive
notice of the dangerous condition of the
box. Id. at 42, 759 N.E.2d at 486. See City
of Jackson v. Internal Engine Parts Grp.,
Inc., 2003-CA-02772-SCT (¶ 10) (Miss.
2005) (affirming the trial court finding
that the defendant city had either actual
or constructive notice of debris obstructions in a drainage ditch by its negligent
failure to inspect and maintain the drainage ditch). We find these cases and their
reasoning persuasive and consistent with
New Mexico jurisprudence. See Pollock,
1999-NMCA-083, ¶ 13 (rejecting the
Department’s argument that the plaintiff
needed to show where a wrong-way driver
entered the highway and how long she had
been driving the wrong way to establish
notice); Martinez, 2013-NMSC-005, ¶ 42
22
(rejecting the defendant’s argument that
it needed notice of a recurring accident
problem at the particular accident site
and concluding “more latitude” was appropriate to decide the question of notice).
This case presents no basis for modifying
our existing precedent. We therefore do
not require Plaintiff to supply evidence
demonstrating precisely how long the tire
debris was on the highway to overcome
summary judgment.
{32} We emphasize that the length of
time which must pass before constructive notice may be found varies with each
specific situation, and the fact that a dangerous condition exists is not sufficient, by
itself, to conclude that a duty to inspect was
breached. Furthermore, nothing we have
said herein is meant to imply that the Department is an insurer of the safety of the
highways in New Mexico. However, when
the Department has actual or constructive
knowledge of a dangerous condition on the
highways, it has a duty to exercise ordinary
care under the circumstances to prevent
injury to the motoring public.
{33} The jury must decide whether the
Department’s system for identifying and
removing specific pieces of debris is so
lacking as to impute notice of this particular debris on the Department or if the
Department’s actions were reasonable under the circumstances. Reasonable minds
could differ in answering that question. A
reasonable juror could agree with Plaintiff
that the Department’s policies of identifying and removing dangerous debris were
inadequate; or the jury could conclude that
the Department acted reasonably and that
any additional policies would be unreasonable. “Questions of ‘reasonableness’ are
quintessential issues for a jury to resolve.
In our system of justice, we place special
confidence in juries to sort through conflicting evidence and come to a reasonable
conclusion.” Martinez, 2013-NMSC-005, ¶
47.
3. Proximate Cause
{34} The Department argues that even
if it owed Decedent a duty and breached
that duty, her death was not the proximate
result of its negligence.
{35} This element concerns “whether and
to what extent the defendant’s conduct
foreseeably and substantially caused the
specific injury that actually occurred.”
Herrera, 2003-NMSC-018, ¶ 8. “An act
or omission may be deemed a ‘proximate
cause’ of an injury if it contributes to bringing about the injury, if the injury would not
have occurred without it, and if it is reasonably connected as a significant link to
the injury.” Talbott v. Roswell Hosp. Corp.,
2005-NMCA-109, ¶ 34, 138 N.M. 189, 118
P.3d 194; see UJI 13-305 NMRA (defining
causation); Galvan v. City of Albuquerque,
1973-NMCA-049, ¶ 18, 85 N.M. 42, 508
P.2d 1339 (“Proximate cause is that which,
in a natural or continuous sequence,
produces the injury and without which
the injury would not have occurred.”).
Determining proximate cause is a question
of fact for the jury. Id. ¶ 12. Only when the
facts are undisputed “and the reasonable
inferences from those facts are plain and
consistent,” does proximate cause become
an issue of law. Id.
{36} The Department argues that even
if Plaintiff shows that the Department
breached its duty by failing to provide
more litter patrols, without being able to
show that the tire debris was on the road
for an unreasonable length of time, Plaintiff cannot prove that the Department’s
failure to act proximately caused the accident. The Department insists that since
the “tire debris could have been deposited
mere seconds before the accident[,]” no
reasonable juror could find that the Department’s negligence caused the accident.
(Emphasis added.) This argument is too
speculative to decide as a matter of law.
The jury must decide whether remedies
could have prevented this accident. See
Ryan, 1998-NMCA-116, ¶ 17 (deciding
that the jury must decide between the
parties’ disputing theories about whether
animal crossing warning signs could have
prevented the plaintiff ’s collision with an
elk). We are therefore unpersuaded that
no reasonable juror could find proximate
cause under the facts before us.
CONCLUSION
{37} The district court order granting
summary judgment in favor of the Department is reversed.
{38} IT IS SO ORDERED.
MICHAEL E. VIGIL, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
J. MILES HANISEE, Judge
Advance Opinions
Certiorari Denied, November 20, 2014, No. 34,925
DEBORAH BROWN, Individually and
on Behalf of Her Minor Children, H.B and B.S.,
Plaintiff-Appellant,
v.
ROBERT KELLOGG, M.D., ROBERT OLSEN, M.D., and
PRESBYTERIAN HEALTHCARE SERVICES d/b/a
KASEMAN PRESBYTERIAN HOSPITAL,
Defendants-Appelleese
Docket No. 32,988 (filed September 17, 2014)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
VALERIE A. HULING, District Judge
JAMES P. LYLE
LAW OFFICES OF JAMES P. LYLE, P.C.
for Appellant
Opinion
Timothy L. Garcia, Judge
{1}Plaintiff, Deborah Brown, appeals
from the district court’s grant of summary
judgment in favor of Defendants, Robert
Kellogg, M.D., Robert Olsen, M.D., and
Presbyterian Healthcare Services d/b/a
Kaseman Presbyterian Hospital. Plaintiff
contends the district court erred in failing
to recognize that Defendants had a legal
duty to order that Plaintiff ’s husband,
Jeremy Brown, undergo a fitness for duty
evaluation before releasing him to return
to work as a police officer. We agree with
the district court that Defendants did not
have a legal duty to order a fitness for duty
evaluation. We affirm.
BACKGROUND
{2} Jeremy Brown was a detective with the
Pueblo of Laguna Police Department. On
May 17, 2007, Brown presented himself
to the emergency room with thoughts of
suicide stemming from the breakup of
his marriage. Brown was found to exhibit
“[n]o current . . . psychosis” and was discharged after a few hours. Brown returned
to the emergency room on May 21, 2007,
and was admitted to the hospital “in order
to evaluate [his] dangerousness in view of
JEFFREY M. CROASDELL
SHANNON M. SHERRELL
EDWARD RICCO
RODEY, DICKASON, SLOAN,
AKIN & ROBB, P.A.
for Appellees
expressed suicidal ideation and to evaluate
for depression.”
{3}On May 23, 2007, Brown was discharged from the hospital with a diagnosis
of depression and adjustment reaction
with anxiety and depression. The followup plan provided for individual therapy
and for Brown to contact a psychologist
at work. Brown received medical authorization from his doctors to return to work
without restriction on May 26, 2007. A
fitness for duty examination was not
performed on Brown before he received
authorization to return to work. On June
8, 2007, Brown used his service weapon
to shoot Plaintiff and kill himself. Plaintiff
suffered permanent brain injuries as a
result of the shooting and lost custody of
her minor children.
{4}Plaintiff, individually and on behalf
of her minor children, filed a complaint
against Defendants on May 14, 2010, asserting a claim for medical malpractice.
Defendants filed a motion to dismiss that
was denied by the district court. Defendants next filed a motion for summary
judgment, arguing that they did not owe
a duty to Plaintiff as a matter of law. Following a hearing, the district court granted
Defendants’ motion and entered summary
judgment in favor of Defendants. Plaintiff
appeals from this order granting summary
judgment.
DISCUSSION
{5} We review the district court’s grant of
summary judgment de novo. See Farmington Police Officers Ass’n v. City of Farmington, 2006-NMCA-077, ¶ 13, 139 N.M. 750,
137 P.3d 1204. Summary judgment should
be granted “if the pleadings, depositions,
answers to interrogatories and admissions
on file, together with the affidavits, if any,
show that there is no genuine issue as to
any material fact and that the moving party
is entitled to a judgment as a matter of law.”
Rule 1-056(C) NMRA.
{6}“To prove medical malpractice, a
plaintiff must show that (1) the defendant
owed the plaintiff a duty recognized by
law; (2) the defendant breached the duty
by departing from the proper standard
of medical practice recognized in the
community; and (3) the acts or omissions
complained of proximately caused the
plaintiff ’s injuries.” Diaz v. Feil, 1994NMCA-108, ¶ 5, 118 N.M. 385, 881 P.2d
745. The district court concluded that
Defendants did not owe a duty to Plaintiff
as a matter of law. Plaintiff contends the
district court erred in failing to recognize
that Defendants had a duty to order a fitness for duty evaluation for Brown before
authorizing him to return to work as a police officer with access to a service weapon.
{7}In Wilschinsky v. Medina, our Supreme
Court explained that “[t]he finding of a
duty involves the court in a careful balancing.” 1989-NMSC-047, ¶ 7, 108 N.M.
511, 775 P.2d 713. In determining whether
to recognize a duty, the court “must take
into account the likelihood of injury, the
magnitude of the burden of guarding
against it and the consequences of placing that burden upon the defendant.” Id.
(internal quotation marks and citation
omitted). Our Supreme Court has recently
clarified that “foreseeability is not a factor
for courts to consider when determining
the existence of a duty . . . [because it] is
a fact-intensive inquiry relevant only to
breach of duty and legal cause considerations.” Rodriguez v. Del Sol Shopping Ctr.
Assoc., 2014-NMSC-014, ¶ 1, 326 P.3d 465.
“Instead, courts must articulate specific
policy reasons, unrelated to foreseeability
considerations, when deciding whether a
defendant does or does not have a duty or
that an existing duty should be limited.”
Id. ¶ 25. We thus undertake an analysis
of the policy considerations and interests
involved without regard to whether the
23
Advance Opinions
injury sustained by Plaintiff was foreseeable. Unfortunately, the district court addressed the issue of whether Defendants
owed Plaintiff a duty to require Brown to
undergo a fitness for duty evaluation prior
to the issuance of the Supreme Court’s ruling in Rodriguez. As a result, neither party
developed a significant record addressing
the policy-based considerations to be
weighed by the district court. This Court’s
analysis of Defendant’s duty to Plaintiff is
reflective of the limited record that was
developed in the district court.
{8}Our courts have recognized three
sources of duty for medical professionals
to third parties. See Wilschinsky, 1989NMSC-047, ¶ 8. In the first instance, a
doctor or institution can potentially be
liable for injury caused by patients with
known “dangerous propensities” if the
doctor exerts control over the patient.
See id.; see e.g., Kelly v. Bd. of Trustees of
Hillcrest Gen. Hosp. Inc., 1974-NMCA139, ¶¶ 5-7, 87 N.M. 112, 529 P.3d 1233
(holding summary judgment was improperly entered in favor of the defendant
because the defendant failed to make a
prima facie showing that it did not have
actual knowledge of patient’s “dangerous
propensities”); see also Stake v. Woman’s
Div. of Christian Serv., 1963-NMSC-221,
¶¶ 4-5, 73 N.M. 303, 387 P.2d 871 (recognizing the potential duty to warn of
patient’s “dangerous propensities” when
the defendant has actual knowledge of
such propensities). In the second instance,
a doctor who is aware of specific threats to
the life of an individual can potentially be
liable for failing to disclose those threats
to the authorities or to the person threatened. See Wilschinsky, 1989-NMSC-047,
¶ 9 (discussing Tarasoff v. Regents of Univ.
of Cal., 551 P.2d 334 (Cal. 1976)). In the
third instance, a doctor who administers
powerful drugs in his office that result in
impairment to a patient can potentially
be liable to those injured by the impaired
patient. Wilschinsky, 1989-NMSC-047, ¶¶
11, 28.
{9}Plaintiff does not suggest that the
duty it seeks to impose on Defendants
falls within any of the three categories
identified in Wilschinsky. Instead, Plaintiff argues that under Wilschinsky, a duty
exists based upon a factual analysis of 1)
foreseeability—a likelihood of injury to
the plaintiff, and 2) the burden placed
upon a defendant—the magnitude of the
burden on a defendant and the consequences of doing so. See id ¶ 9. Plaintiff
bases her argument on a consideration
of “the uniquely dangerous perspective
posed by law enforcement officers who
are trained in all aspects of lethal force,
combined with the well known need
among mental [healthcare] professionals
to order a fitness for duty evaluation under
these [factual] circumstances.” Effectively,
Plaintiff argues that this Court should
impose a new, more focused duty to order
a fitness for duty evaluation on independent healthcare professionals who treat
individuals with access to firearms as part
of their workplace environment. Plaintiff
cites to neither New Mexico nor outside
authority that would impose such a duty
on independent healthcare professionals.
The only fitness for duty examination
requirement identified and recognized
under existing law would apply to certain
federal law enforcement agencies.1 Even
under the federal regulation referenced
by Plaintiff, it is the discretionary function of the federal agency, as employer, to
consider imposing a psychiatric evaluation
on a federal employee. Id. Plaintiff does
not even assert that such a duty is imposed
upon Brown’s employer in this case. In
addition, Plaintiff does not dispute that a
fitness for duty evaluation is not imposed
on public agencies in New Mexico and is
not required by independent healthcare
professionals pursuant to existing law.
Finally, Plaintiff ’s fact-based analysis of
foreseeability is inconsistent with the
policy-based analysis required under Rodriguez. 2014-NMSC-014, ¶¶ 1, 25.
{10} Based upon the record presented in
this case, there appear to be good policy
reasons for rejecting the imposition of
a fitness for duty legal obligation on independent healthcare professionals who
treat individuals with access to firearms
as part of their workplace environment. It
appears from the testimony of Plaintiff ’s
own expert, Peter DiVasto, a fitness for
duty evaluation is a complex evaluation
that “takes about two weeks to complete.”
DiVasto also testified that he has never
been in a situation where a hospital has
ordered a fitness for duty evaluation. It
is unclear who would conduct the evalu-
ation, who would pay for the evaluation,
and how the outcome of the evaluation
would affect a patient’s medical care and
workplace limitations. It is also unclear
what negative effects a fitness for duty
evaluation requirement on independent
healthcare professionals would have on law
enforcement personnel and their desire to
seek medical assistance.
{11} We do not believe it is appropriate
for this Court to impose an entirely new
and novel legal duty upon healthcare
professionals without an extensive development of the policy considerations
in the record for review. A balancing of
the various policy interests presented
in this case does not clearly support the
imposition of such a new duty. These are
the types of policy considerations that
should be publicly addressed as part of
the legislative process if a fitness for duty
evaluation is to be imposed as a new duty
upon healthcare professionals. We find the
following Supreme Court language to be
particularly instructive:
Policy determines duty. With
deference always to constitutional
principles, it is the particular domain of the [L]egislature, as the
voice of the people, to make public policy. Elected executive officials and executive agencies also
make policy, to a lesser extent, as
authorized by the constitution or
the [L]egislature. The judiciary,
however, is not as directly and politically responsible to the people
as are the legislative and executive
branches of government.
Torres v. State, 1995-NMSC-025, ¶ 10, 119
N.M. 609, 894 P.2d 386.
{12} DiVasto testified at his deposition
that he believed Defendants’ responsibility was to provide Brown with an outpatient appointment upon discharge, and
Defendants satisfied that responsibility.
Brown’s follow-up plan also required him
to contact a psychologist at work. The
Legislature and our courts have not imposed any additional duty upon healthcare
professionals regarding their patients with
jobs that involve carrying firearms as part
of their workplace functions. In addition,
this Court is not aware of any other jurisdiction that has recognized a duty on the
part of a healthcare professional to order
1 Plaintiff cites to a portion of the Office of Personnel Management regulations setting forth the circumstances under which a federal
agency has discretion to order a psychiatric examination. See 5 C.F.R. § 339.301(e)(1) (2014). However these regulations involve the
federal agency as an employer, do not address the specific situation involving independent healthcare professionals presented in the
present case, and do not place a duty on any healthcare professional to order or compel a fitness for duty evaluation upon a patient.
24
Advance Opinions
a fitness for duty evaluation under similar
circumstances. See 5 C.F.R. § 339.301(e)
(1). The duty imposed upon federal law
enforcement agencies would be evaluated
under a different and distinct set of policy
considerations focusing upon employment and workplace considerations. The
relationship between a healthcare professional and a patient is uniquely different,
necessitating policy considerations that
focus on the medical circumstances present. We agree with the district court that
Defendants did not have a legal duty to
order Brown to undergo a fitness for duty
evaluation before releasing him from
the hospital and later authorizing him to
return to the workplace as a police officer
pursuant to the specific requirements set
forth in his medical follow-up plan.
CONCLUSION
{13} For the foregoing reasons, we affirm
the district court’s grant of summary judgment in favor of Defendants.
TIMOTHY L. GARCIA, Judge
WE CONCUR:
RODERICK T. KENNEDY, Chief Judge
JAMES J. WECHSLER, Judge
25
Advance Opinions
Certiorari Denied, December 11, 2014, No. 34,939
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOHN GREEN,
Defendant-Appellant
Docket No. 31,787 (filed September 22, 2014)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
CARL J. BUTKUS, District Judge
GARY K. KING
Attorney General
JACQUELINE R. MEDINA
Assistant Attorney General
for Appellee
Opinion
J. Miles Hanisee, Judge
{1} This appeal follows the revocation of
Defendant’s probation and his ensuing return to incarceration in order to conclude
his original term of imprisonment in full. In
2003, after pleading guilty to second-degree
kidnapping and murder, Defendant was sentenced to nineteen years, of which nine were
suspended by the district court. In 2008,
after about five years in prison, Defendant
was released on probation. Within months
of his release, however, the State began
to allege what became a series of ensuing
violations that culminated in the revocation
of Defendant’s probation. Ultimately, the
district court ordered Defendant to serve
the balance of his sentence in prison, including a previously imposed one year habitual
offender enhancement. Defendant appeals
both the revocation of his probation, as well
as the conditions of probation. We affirm.
BACKGROUND
{2} In 2001 Defendant was indicted for the
kidnapping, rape, and murder of Kathryn
JORGE A. ALVARADO
Chief Public Defender
KIMBERLY CHAVEZ COOK
Assistant Public Defender
for Appellant
Dockweiller, an Albuquerque attorney,
in 1988. Defendant was allowed to plead
guilty, pursuant to North Carolina v. Alford,
400 U.S. 25 (1970) (holding that a district
court may accept a defendant’s guilty
plea despite an absence of admission to
criminal wrongdoing), to second-degree
murder, contrary to NMSA 1978, § 302-1(B) (1980) and kidnapping, contrary
to NMSA 1978, § 30-4-1 (1973).1 During
the plea hearing, Defendant did not oppose the State’s request that the district
court take judicial notice of the grand jury
proceedings and content of the indictment
to establish a factual basis for the plea.
{3}The record reveals that Detective Bill
Peters of the cold-case unit of the Bernalillo County Sheriff ’s Department provided
testimony to the grand jury that indicted
Defendant. He informed the grand jury
that Ms. Dockweiller had disappeared on
May 12, 1988, and was found several days
later in a shallow grave, still bound and
gagged. The Office of the Medical Investigator (OMI) concluded that the nature
and manner of death had been homicide
by strangulation. Pursuant to the death
investigation conducted by OMI, vaginal
swabs were taken from Ms. Dockweiller
that revealed the presence of semen within
Ms. Dockweiller’s body that had been
deposited there “at or near the time of her
death.” Defendant was originally a suspect
in Ms. Dockweiller’s murder, and following a report from his ex-wife over a decade
later, wherein she disclosed her discovery
of Ms. Dockweiller’s calendar concealed
within Defendant’s vehicle, Detective
Peters obtained a search warrant for Defendant’s DNA, which was found to match
the DNA obtained from Ms. Dockweiler’s
body. Based on this discovery, Defendant
was indicted and chose to plead guilty in
lieu of trial.
{4}Following the plea colloquy, the district court observed that the murder of
Ms. Dockweiller was in fact the second
murder Defendant had committed. A presentencing report informed the district
court that Defendant had been previously
sentenced to serve a twenty-year period
of imprisonment in Texas based upon an
unrelated homicide and attempt to commit criminal rape in 1979.2 Based on the
circumstances of the instant case and in
light of Defendant’s past criminal history,
the district court ordered that he serve
the statutory maximum penalty of nine
years for the second-degree murder of Ms.
Dockweiller, nine additional years for her
kidnapping, and an extra year because he
was a habitual offender. Due to the tenyear sentencing cap established within the
plea agreement, however, the district court
suspended nine of Defendant’s nineteen
year cumulative sentence. It imposed the
maximum available period of probation
of five years, alongside two years of supervised parole. In its judgment and sentence,
the district court ordered probation to
be wholly conditioned upon Defendant
“obey[ing] all rules, regulations[,] and
orders of the [p]robation [a]uthorities.”
{5}When Defendant was released from
prison, he signed a sex offender behavioral contract. Although not required to
register as a sex offender under the Sex
Offender Registration and Notification
Act (SORNA), NMSA 1978, §§ 29-11A-1
to -10 (1995, as amended through 2013),
Defendant was compelled to comply with
various sex-offender-related terms of
1 We note that on the “Repeat Offender Plea and Disposition Agreement” (plea agreement), the words “no contest” are crossed out
and the phrase “guilty pursuant to Alford” is written in its place. The plea agreement, which also established the sentencing parameters
agreed to by the parties, was signed by the prosecutor as well as by Defendant and his attorney.
2 Although the record does not shed light on how much of his sentence Defendant actually served in Texas, it was clearly less than
the twenty years as he murdered Ms. Dockweiller in 1988, merely nine years later.
26
Advance Opinions
probation, including abstention from the
purchase, possession, or subscription to
“any sexually oriented or sexually stimulating material.” In the contract, Defendant
agreed that probation authorities were
free to examine any computer Defendant
could access for inappropriate content,
including, but not limited to pornography.
Within months of Defendant’s release and
placement on probation in 2008, probation
authorities alleged that he was in violation
of specific prohibitions to which he had
agreed. Specifically, the probation violation report alleged that Defendant had
associated with other probationers and
parolees, responded to personal dating
ads on the internet, and left the county
without permission. He was arrested on
the probation violations, and the State
sought revocation of his probation.
{6} At the time, Defendant challenged the
allegations on the grounds that the sex offender behavioral contract he was required
to sign was not reasonably related to the
charges of conviction, and that the “overbroad, pervasive, and undifferentiated
restrictions” associated with sex offender
probation violated his due process rights.
He relied on State v. Williams, in which
we held that a defendant not convicted
of a sex offense under SORNA cannot be
subjected to SORNA requirements. 2006NMCA-092, ¶ 12, 140 N.M. 194, 141 P.3d
538. The State, through the New Mexico
Corrections Department (NMCD), filed a
response, maintaining that the crimes of
conviction, considered alongside what was
known regarding his prior murder conviction, justified the probationary supervision
he received. NMCD asserted that probation authorities have broad discretion to
supervise probationers with those conditions it deems appropriate and that NMSA
1978, Section 31-21-4 (1963) requires that
the post-release probationary treatment
of persons convicted of crimes “shall
take into consideration their individual
characteristics, circumstances, need[s,]
and potentialities.” Following a hearing,
the district court denied Defendant’s motion to modify the terms and conditions
of his probation, yet did not then revoke
Defendant’s probation.
{7} In May 2011 Defendant was again arrested for what were alleged to be additional
probation violations. This time, the probation report asserted that Defendant: (1)
was in violation of his behavioral contract
as he was found to have pornographic imagery on his computer; (2) had responded
to personal advertisements on his laptop
computer in violation of the behavioral
contract; and (3) had violated his probation by associating with other probationers
and parolees. During the ensuing violation
hearing, Officer Baum, Defendant’s probation supervisor, testified that when Defendant had initially signed the behavioral
contract and Defendant had reviewed the
conditions contained within it, specifically
including the conditions on computer usage
that disallowed pornography and sexually
explicit material. The officer testified that
upon opening and examining Defendant’s
computer, he observed a “photo of a nude
woman.” Officer Baum testified that he
asked Defendant if “there [were] any porn
images” on the computer, and Defendant
replied that there were. Officer Baum stated
that he and a colleague later conducted a
forensic examination of the computer and
found numerous pornographic images.
Over Defendant’s objection as to foundation, a collage of the images found were
entered into evidence as State’s Exhibit 2
(Exhibit 2) during Defendant’s revocation
hearing. Following the hearing, the court
revoked Defendant’s probation and ordered
that he serve the remainder of his original
sentence.
{8}Defendant appeals the revocation
of his probation on three bases, arguing
that: (1) the requirement that he sign a
sex offender behavior contract was an illegal condition of probation; (2) there was
insufficient evidence to support any of the
probation violations found by the district
court or, in the alternative, he lacked notice
that his conduct could constitute violations
of the conditions of probation; and (3) the
images found on Defendant’s laptop lacked
a proper foundation and should have been
determined to be inadmissible.
LEGALITY OF CONDITIONS OF
PROBATION
{9}New Mexico law places squarely
within purview of the district court the
authority to order a defendant to “satisfy
any other conditions reasonably related
to . . . rehabilitation.” NMSA 1978, § 3120-6(F) (2007). An award of probation is
a discretionary act of the sentencing court,
and a challenge to its terms and conditions
is reviewed on appeal only for an abuse of
discretion. Williams, 2006-NMCA-092, ¶
3. “However, a sentencing court may not
impose an illegal sentence. [I]t does not
have the discretion to impose a probation
term or condition that is contrary to law.”
Id. ¶ 4. “We review the legality of a [criminal] sentence under the de novo standard
of review.” Id.
The Conditions of Probation Imposed
by NMCD were Authorized by the
District Court
{10} Defendant first contends that the
conditions of probation to which he was
required to adhere were illegal because
NMCD lacked the authority to mandate
that his release be conditioned upon his
being party to any “sex offender behavior
contract” that included conditions not
expressly provided within the district
court’s judgment and sentence. To support his argument, Defendant relies upon
Section 31-20-6, which requires that
the sentencing court attach to its order
“reasonable conditions as it may deem
necessary to ensure that the defendant
will observe the laws of the United States
and the various states and the ordinances
of any municipality.” Defendant additionally relies on State v. Martinez, which states
that “[c]onditions [of probation] may not
be added by amendment subsequent to
imposition of a valid original judgment.”
1972-NMCA-135, ¶ 4, 84 N.M. 295, 502
P.2d 320.
{11} Considering this same issue, our
Court determined that a district court’s
enumeration of a special probationary
condition that the defendant “comply with
any other reasonable conditions specified
by the Probation and Parole Division[,]”
is sufficient indicia to justify placement of
a defendant on sex offender supervision.
State v. Leon, 2013-NMCA-011, ¶ 24, 292
P.3d 493 (internal quotation marks omitted), cert. quashed, 2013-NMCERT-010,
313 P.3d 251. In Leon, we cited to Martinez, where the defendant “argued that the
conditions imposed by the probation office
were without legal effect because they were
not part of the district court’s order deferring his sentence.” Leon, 2013-NMCA-011,
¶ 25. We determined that the language of
the order in Martinez made the conditions imposed by the probation office the
conditions of the defendant’s probation.
1972-NMCA-135, ¶ 5.
{12} Here, the district court’s order generally stated that “Defendant is ordered to
be placed on supervised probation . . . on
condition that Defendant obey all rules,
regulations[,] and orders of the [p]robation [a]uthorities.” As in both Martinez
and Leon, the district court’s judgment and
sentence incorporates language which justified specific, individual requirements of
probation. “That the terms and conditions
set by the probation office were not spelled
out in the order itself did not establish
that those terms and conditions were not
27
Advance Opinions
imposed by the court.” Leon, 2013-NMCA011, ¶ 26. On both our precedent and the
facts of this case, we determine that the
conditions of probation were sufficiently
stated in the district court’s original judgment and sentence.
{13} Relying on United States v. Carter,
463 F.3d 526 (6th Cir. 2006), Defendant
nonetheless argues that NMCD failed to
adequately justify its decision imposing
sex offender conditions upon Defendant
and that it never established that a sexual
offense was committed in the first place.
Carter stated that a district court must
justify special conditions of supervised
release at the time of sentencing and must
“state in open court the reasons for its imposition of the particular sentence[.]” Id. at
528 (internal quotation marks and citation
omitted). But we do not find Carter to be
helpful or supportive of Defendant’s position. Specifically, Carter does not support
Defendant’s contention that NMCD was
required “to state its reasons and rationale
for mandating special sex offender conditions of probation.” Carter imposes, in a
federal context, explanatory requirements
solely upon the district court, not upon
any probationary entity. More importantly,
this requirement is imposed pursuant to
federal statute, 18 U.S.C. § 3553(c) (2010),
a mandate the New Mexico Legislature
has not adopted. See State v. Lack, 1982NMCA-111, ¶ 15, 98 N.M. 500, 650 P.2d 22
(“Authority to grant probation is a matter
of legislative grace, and the district court’s
power to impose probation is purely statutory.”).
{14} We conclude that Defendant has not
established that Carter, or any argument
he has made regarding the behavioral
contract, is able to overcome the probationary discretion authorized by Martinez
and Leon that extends from the district
court to probation authorities when
worded as the district court did in this
case. The behavioral contract Defendant
was required to sign upon his release from
prison and commencement of probation
was a proper exercise of probationary
authority pursuant to the judgment and
sentence that followed and was based
upon the plea agreement Defendant also
signed. Defendant’s signature on the plea
agreement, provided in the presence of his
attorney, acknowledged his understanding
of its terms that included the five-year
period of probation and warned that any
violation could lead to Defendant’s return
to incarceration for the balance of the
original sentence imposed.
28
The District Court Did Not Err in
Denying Defendant’s Motion to Modify
the Conditions of Probation
{15} Defendant next argues that the
district court abused its discretion in
denying Defendant’s motion to modify
the conditions of release as no reasonable
relationship existed between Defendant’s
convictions and the conditions of probation. He additionally argues that there was
insufficient evidence in the record to support sex offender probation. Among other
conditions, the sex offender supervision
behavioral contract required that Defendant abstain from purchasing, possessing,
or subscribing “to any sexually oriented
or sexually stimulating material.” He was
also prohibited from possessing pornography. Defendant asserts that he was not
convicted of a sexual offense, nor was there
a factual basis or evidence supporting an
inference that a sexual offense occurred,
and therefore, these conditions were not
reasonably related to his convictions of
second-degree murder and kidnapping.
{16} Under the abuse of discretion
standard appropriate for our review of
conditions of probation, “we will not
set . . . aside [the terms and conditions
of a probation] unless they[:] (1) have
no reasonable relationship to the offense
for which the defendant was convicted,
(2) relate to activity which is not itself
criminal in nature, and (3) require or
forbid conduct which is not reasonably
related to deferring future criminality.”
Williams, 2006-NMCA-092, ¶ 3 (emphasis, alteration, internal quotation marks,
and citation omitted). “To be reasonably
related, the probation condition must be
relevant to the offense for which probation was granted.” State v. Gardner, 1980NMCA-122, ¶ 19, 95 N.M. 171, 619 P.2d
847. On appeal, it is Defendant’s burden
to persuade us that the district court erred
and abused its discretion in holding that
a reasonable relationship existed between
Defendant’s kidnapping and murder convictions and his conditions of probation.
Leon, 2013-NMCA-011, ¶ 28; State v. Baca,
2004-NMCA-049, ¶ 16, 135 N.M. 490, 90
P.3d 509. We determine Defendant failed
to do so, and we remain unpersuaded by
his conclusions to the contrary.
{17} As we have stated, Defendant
pleaded guilty to the second-degree kidnapping of Ms. Dockweiler. The statute at
the time of her kidnapping and murder
defined kidnapping as “the unlawful taking, restraining or confining of a person,
by force or deception, with intent that the
victim . . . (3) be held to service against
the victim’s will.” Section 30-4-1(A)(3).
Our Supreme Court has recognized that
“ ‘h[olding] for service[s]’ ” can include
holding a victim for sexual purposes. See
State v. McGuire, 1990-NMSC-067, ¶¶
8, 12, 110 N.M. 304, 795 P.2d 996. The
district court record indeed contains evidence supporting the State’s assertion that
there was a sexual element to Defendant’s
crime. There was testimony before the
grand jury that Defendant’s semen was
located within Ms. Dockweiler’s deceased
body and that it was “deposited at or near
the time of her death.” Furthermore, Defendant had been indicted by the grand
jury on a charge of first degree criminal
sexual penetration, a fact that the district
court addressed at the hearing on Defendant’s motion to modify in response
to Defendant’s assertion that the State
did not present evidence that it believed
a sex crime was committed. Lastly, the
pre-sentence report indicates that this was
not the first instance in which Defendant
was charged with a sexually based crime;
Defendant was previously charged with
“[a]ttempt to [c]ommit [c]riminal [r]ape”
in the state of Texas.
{18} Thus, Defendant’s contention that
the requirement that he sign and adhere
to a sex offender behavior contract bore
no relation to facts suitable for the district
court’s or probation authorities’ reliance is
inaccurate and incomplete. His contention
that these things are too remote in time or
that he “never had an opportunity to challenge those assertions” misunderstands
the distinction between what would have
been required to convict him of sex offenses during a trial on the merits and
what is properly relied upon to inform
those tasked with maintaining community
safety at the time Defendant was permitted to leave prison before his sentence was
complete.
{19} Again in this regard, we rely on Leon,
2013-NMCA-011, ¶¶ 27-34. There, the
defendant pled no contest to contributing
to the delinquency of a minor and selling
or giving alcohol to a minor. Id. ¶ 2. Upon
suspension of his sentence, the defendant
was ordered by NMCD to sign a sex offender behavior contract. The defendant
already had a prior felony conviction
for a sex offense. Id. ¶ 3. This Court acknowledged that the defendant’s current
convictions involved criminal contact with
minors and based on these circumstances,
in addition to the defendant’s criminal
history, the district court did not err in
Advance Opinions
determining that a sex offender behavior
contract was reasonably related to the current convictions, rehabilitation, and public
safety. Id. ¶¶ 30-31.
{20} Although we recognize that in the
case before us Defendant had not been
convicted of a sexual offense, as had the
defendant in Leon, such is not fatal to
the conditions of Defendant’s probation.
Defendant was in fact charged with a
sexual offense on two prior occasions and
indicted by a grand jury on one of those
charges. As in Leon, Defendant’s current
conviction involved criminal contact
with Ms. Dockweiller, and what is more
crucial to our analysis is, not only was it
criminal contact, but of a sexual nature.
What had become the cold case of Ms.
Dockweiller’s murder was solved solely
as a result of the discovery that the semen
found in her deceased body was Defendant’s. It would be inappropriate that our
Legislature’s instruction that probation
authorities study a defendant’s case to determine that individual’s “characteristics,
circumstances, needs and potentialities[,]”
Section 31-21-4, somehow be viewed to
require exclusion of such a material fact.
Given the available facts regarding Defendant’s current convictions, considered
alongside his alarmingly similar criminal
history, we cannot conclude that the district court abused its discretion in ruling
that the conditions of his probation were
reasonably related to his current convictions, rehabilitation, or public safety. See
Leon, 2013-NMCA-011, ¶ 27 (“The court
has broad discretion to effect rehabilitation
and may impose conditions designed to
protect the public against the commission
of other offenses during the term, and
which have as their objective the deterrence of future misconduct.” (internal
quotation marks and citation omitted));
Baca, 2004-NMCA-049, ¶ 36 (“The general
purposes of probation . . . are rehabilitation
and deterrence for community safety[.]”).
SUFFICIENCY OF EVIDENCE TO
SUPPORT PROBATION REVOCATION
{21} Defendant next asserts that there
was insufficient evidence to support any
of the alleged probation violations upon
which his probation was revoked. The probation violation report alleged numerous
violations, one being violation of the sex
offender behavior contract that directly
prohibited possession of sexual images on
Defendant’s laptop.3 Defendant contends
that this condition was overly vague such
that a “reasonable person would not have
known that the nude images would be
considered pornography[,]” and thus he
contends that the evidence was insufficient
to support revocation of his probation.
The State argues that the images depict
pornographic, sexually oriented, or sexually stimulating photographic depictions,
the very content Defendant was disallowed
from possessing and was forewarned
would constitute violative conduct.
{22} Proof of a probation violation need
not be established beyond a reasonable
doubt. State v. Martinez, 1989-NMCA036, ¶ 4, 108 N.M. 604, 775 P.2d 1321.
Instead, the evidentiary standard is that
the violation must be established with a
reasonable certainty, such that a reasonable
and impartial mind would believe that the
defendant violated the terms of probation.
State v. Sanchez, 2001-NMCA-060, ¶ 13,
130 N.M. 602, 28 P.3d 1143. The burden
of proving a violation with reasonable
certainty lies with the State. Leon, 2013NMCA-011, ¶ 36. “We review [a district]
court’s decision to revoke probation under an abuse of discretion standard. To
establish an abuse of discretion, it must
appear the [district] court acted unfairly or
arbitrarily, or committed manifest error.”
Martinez, 1989-NMCA-036, ¶ 5 (citations
omitted). We conclude that the State has
met its burden, and the district court did
not abuse its discretion in revoking Defendant’s probation.
{23} Upon his release from custody,
Defendant signed the sex offender behavior contract, and he acknowledged that
he “read, or . . . had read to [him], and
underst[ood] these additional supervision
conditions.” The contract stated, under
condition A of the “computers/electronics/
entertainment” provision, that Defendant
was prohibited from possessing “any
sexually oriented or sexually stimulating
material.” The condition explains that this
“includes, but is not limited to: [s]exual
devices, books, magazines, video/audio
tapes, DVDs, CD ROMs, and [i]nternet
websites.” Condition C of the same provision stated that any computer to which
Defendant had access would be subject to
examination for inappropriate content, including but not limited to pornography or
adult websites. Officer Baum had reviewed
the conditions of probation with Defendant, and specifically informed Defendant
that probation authorities would have “full
access to [his] computer to do any searches
on it for pornography or sexually explicit
material.” He testified that he informed
Defendant that he was not to possess “any
sexually explicit material[,]” including
“[p]ictures[,] [n]aked women [or] [m]en.
Anything that’s sexually explicit.”
{24} Baum additionally testified that
upon performing a field visit, he and
another probation officer located and
searched Defendant’s computer. Baum
explained that in conducting the computer
search he initially saw “a photo of a nude
woman,” and that Defendant “acknowledged that there was pornography on his
computer[.]” Baum testified that he was
present during a forensic examination that
was conducted on Defendant’s computer
and viewed the resulting report containing
the nude images. Exhibit 2 is the report
and collage of nude images the State entered into evidence. At the conclusion of
the hearing, the district court found that
Defendant violated paragraph C of the
“computers/electronics/entertainment”
provision of the sex offender behavior
contract, ruling that the images discovered
on Defendant’s computer were in fact
pornography and revoked Defendant’s
probation.
{25} Although our case law contains little
guidance on the definition of adult pornography, we are helped by our Supreme
Court’s definition of “ ‘sexually explicit
exhibition’ ” and our Legislature’s definition of “sexual conduct” in the context of
sexual exploitation of children and sexually oriented material harmful to minors,
respectively. Our Supreme Court has
defined the term “sexually explicit exhibition” as a “graphic and unequivocal display
or portrayal of nudity or sexual activity.”
State v. Myers, 2009-NMSC-016, ¶ 19, 146
N.M. 128, 207 P.3d 1105. Furthermore, our
Legislature defines “sexual conduct” as an
“act of masturbation, . . . physical contact
with a person’s clothed or unclothed
genitals, pubic area, buttocks or, if such
3Because we affirm the district court’s ruling with regard to the violation of the sex offender behavior contract, contrary to Condition 5 of Defendant’s conditions of probation, we will not reach the issue of whether there was sufficient evidence to prove the State’s
remaining allegations of probation violations. See Leon, 2013-NMCA-011, ¶ 37 (stating that “although [the d]efendant challenges the
sufficiency of the evidence supporting each of his probation violations, if there is sufficient evidence to support just one violation, we
will find the district court’s order was proper”).
29
Advance Opinions
person be female, breast[.]” NMSA 1978,
§ 30-37-1(C) (1973). We conclude each of
these definitions encompasses that which
is “sexually oriented” within the terms of
Defendant’s sex offender behavior contract. Moreover, each such category was
included within the many images collected
by Defendant on his laptop hard drive.
{26} What Defendant contends to be
“mere nudity,” we, like the district court
before us, hold to be at least nine images of
or depicting sexual activity and/or physical
contact with unclothed female genitals or
buttocks. Given the highly sexual nature
of these images, in conjunction with Officer Baum’s testimony that he informed
Defendant that possession of these types
of images were disallowed under the sex
offender behavior contract, we conclude
that not only did Defendant have notice
of the prohibitions, but that there was
sufficient evidence for a reasonable mind
to conclude that Defendant violated
this condition of probation and that the
district court’s revocation of Defendant’s
probation did not constitute an abuse of
discretion.
ADMISSIBILITY OF PHOTOGRAPHS
{27} As his last point of appeal, Defendant argues that the photographs
contained in Exhibit 2 were improperly
admitted on the basis that the State failed
to properly authenticate or lay a sufficient
foundation for their admission. “We review the district court’s evidentiary rulings
for an abuse of discretion.” State v. Neal,
2007-NMCA-086, ¶ 36, 142 N.M. 487, 167
P.3d 935. Although Defendant acknowledges that the rules of evidence do not
apply to probation revocation hearings,
he nonetheless argues that his due process
rights were violated because Exhibit 2 was
improperly admitted.
{28} At the probation revocation hearing, Officer Baum testified that, after he
saw the initial nude photograph on Defendant’s computer, he arrested Defendant
for a probation violation, and was present
while another officer conducted a forensic
examination on Defendant’s computer.
Baum testified that he saw the report
containing the images that was generated
from the examination and printed that
report. Baum identified Exhibit 2 as the
report he printed from the scan of Defendants computer based on a sticky note he
placed on the document and the docu-
30
ment itself. When the State sought admission of Exhibit 2 into evidence, Defendant
objected on the grounds that the State
had failed to lay the proper foundation.
Defendant argued that another officer ran
the software on Defendant’s computer,
and Baum merely “went and grabbed
documents off the printer[, and] he ha[d]
no idea how it all happened before then.”
Defendant asserted that it was too far of a
stretch for Baum “to say that [the images]
that came off the printer necessarily [were]
on [Defendant’s] computer.” The district
court disagreed and admitted the photos into evidence, explaining that Baum
“was present at all times that the forensic
examination was conducted[,]” and that
he was “able to identify it . . . in court as
the material that he saw at the time that
the scan was done.”
{29} Defendant now argues that Officer
Baum could not provide proper authentication testimony to establish that Exhibit
2 was originally located on Defendant’s
computer. He also suggests that the images were placed on the computer by the
software used by probation authorities,
and notes that Baum cannot testify that
the images were not already stored on
the software prior to the forensic analysis
of Defendant’s computer. Defendant additionally contests Baum’s identification
of the document containing the images,
asserting that “[i]t is inconceivable that Officer Baum actually recognized the images
themselves from a single prior viewing”
and that “Baum’s recognition of the sticky
note is an improper authentication for
admission of the attached packet.”
{30} The primary problem with Defendant’s challenge to the admission of
Exhibit 2 is that rules of evidence do not
apply during probation revocation hearings. See Rule 11-1101(D)(3)(d) NMRA;
Rule 11-901 NMRA. Moreover, Defendant
fails to cite any authority in support of his
request that we apply an evidentiary standard to the contrary. Despite the detail in
which he addresses what he perceives to
be the failed evidentiary and admissibility underpinnings of Exhibit 2, we will
not consider this argument. See State v.
Vaughn, 2005-NMCA-076, ¶ 42, 137 N.M.
674, 114 P.3d 354 (stating that “this Court
will not consider an argument that lacks
citation to any legal authority in support
of that argument”).
{31} Defendant additionally argues
that he was denied the opportunity to
question the officer who performed the
forensic scan of his computer regarding
the forensic software or the administration of the scan. Defendant asserts that the
technique used in the software search to
locate the images on Defendant’s computer
is vital to establishing that Defendant had
knowledge that the images were on his
computer, and the district court erred in
finding knowing possession “without any
foundational testimony.” Although Defendant acknowledges that he is not alleging a
confrontation violation, he maintains that
his due process rights were violated as a
result of allowing Officer Baum to lay the
foundation for the admission of Exhibit 2.
We disagree.
{32} In our review of the record we notice
that Officer Baum testified that after he
located the first nude image on Defendant’s
computer, he questioned Defendant about
whether “there [were] any porn images”
on the computer, and Defendant acknowledged that there were. In probation violation hearings, the district court performs
two separate roles, fact finding and disposition. Martinez, 1989-NMCA-036, ¶ 11.
In this context, Officer Baum’s testimony
bore the capacity to establish that Defendant knew there was prohibited material
on his computer. “It is the court’s sound
judgment that is invoked, and the exercise
of that judgment will not be reversed on
appeal unless it was mistakenly exercised.”
Id. (internal quotation marks and citation omitted). Given this testimony, we
cannot conclude that the district court’s
decision to revoke Defendant’s probation
was “clearly against the logic and effect of
the facts and circumstances of the case[,]”
or that its ruling was “clearly untenable
or not justified by reason.” State v. Layne,
2008-NMCA-103, ¶ 6, 144 N.M. 574, 189
P.3d 707 (internal quotation marks and
citation omitted). Accordingly, we affirm.
CONCLUSION
{33} For the foregoing reasons, we affirm
the revocation of Defendant’s probation.
J. MILES HANISEE, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
M. MONICA ZAMORA, Judge
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Seats!
TRIAL SKILLS COLLEGE
PRACTICAL HANDS-ON TRAINING
March 27-28, 2015
1635 University Blvd. NE Albuquerque
14.5 General Credits
Don’t miss this opportunity to learn basic and intermediate skills or brush
up on additional sophisticated approaches in:
Voir Dire
Opening Statements
Cross Examination
Closing Statements
Lectures and demonstrations by some of New Mexico’s best trial lawyers.
Individual practice sessions followed by one-on-one video review. Attendance at both
days required, lunch provided. Limited to 36 participants.
Faculty: Dennis Candelaria, Teri Duncan, Mark Earnest, Shannon Kennedy, Molly
Schmidt Nowara, Barry Porter, Maureen Sanders, Peter Schoenburg, Michael Stout,
Ray Twohig, David Urias, Joleen Youngers
New Mexico Criminal Defense Lawyers Association
Visit our website WWW.NMCDLA.ORG to register before March 10th
Thank You to
The New Mexico
Defense Lawyers Association
for its Generous Support of the Civil Legal Clinic!
The Second Judicial District Pro Bono Committee and the Volunteer
Attorney Program would like to thank the New Mexico Defense
Lawyers Association and its attorneys for volunteering their time
and expertise at the February 4, 2015 Civil Legal Clinic. The Clinic
is held on the first Wednesday of every month at the Second Judicial
District Courthouse in the 3rd floor conference room from 10 a.m.
until 1 p.m. Thirty individuals received assistance at the February
clinic thanks to the dedication of three attorneys who are members
of the New Mexico Defense Lawyers Association and three attorneys
who assist with the clinic on a regular basis. Thank you:
NMDLA
Clinic Attorneys:
Mark Standridge
Billy Burgett
Sean Garrett
Susan Page
David Gonzales
Brian Gaddy
If you or your firm is interested in volunteering, please contact
Aja Brooks at abrooks@nmbar.org or (505)797-6040.
PROGRAM SPECIALIST
The Southwest Indian Law Clinic seeks a
professional, highly organized person to
assist in the overall management of a law
office in an educational setting. The
Program Specialist is responsible for
managing confidential files, administering
program budgets, preparing reports, and
professional interaction with clients,
students, faculty, staff and court personnel
in support of daily tasks to serve the legal
needs of our communities. Excellence
in written and oral communication,
problem-solving, and customer service
required. Experience working with Native
people and communities desirable. Must
have the ability to work as a liaison with
university and governmental positions and
public relations.
TO APPLY:
https://unmjobs.unm.edu/applicants/
Central?quickFind=81482.
EEO/AA/Minorities/Females/Vets/Disabled/
and other protected classes.
34
Letherer Insurance
Consultants, Inc.
Representing 24 Insurance Companies
MORNINGSTAR ENTERPRISES, LLC
MARIE SUSAN LEE, CPA MBA CFE
FORENSIC ACCOUNTING
(505) 235-3500 • marie@morningstarcpa.com
www.morningstarcpa.com
No need for another associate
Bespoke lawyering for a new millennium
THE BEZPALKO LAW FIRM
Legal Research and Writing
(505) 341-9353
www.bezpalkolawfirm.com
CLE Program Manager
Don Letherer
State Bar of New Mexico seeks FT CLE
Program Manager. Successful applicant will
have project, financial, marketing and staff
management experience. Prior work in legal
field or adult education a plus. Compensation
$45,000 - $50,000 DOE. Email cover letter
and resume to hr@nmbar.org, EOE.
Brian Letherer
We solve Professional Liability Insurance Problems
We Shop, You Save.
New programs for small firms.
Request for Applications
City of Albuquerque
Assistant City Attorney Position(s)
dletherer@licnm.com • bletherer@licnm.com
505.433.4266 • www.licnm.com
Manzano
Day School
Small class size
Environmental studies program
Extended Day Program
Financial aid available
Now accepting
applications
for the 2015-2016
school year.
Sunday
Open House
November 9
2-4 p.m.
Albuquerque’s only elementary
school accredited by the
Independent Schools
Association of the Southwest.
Assistant City Attorney positions available with
the Litigation Division with desired experience
in civil litigation in handling pretrial discovery,
motion practice, trial preparation and trial.
We are seeking attorneys who have an interest
in defending civil rights, personal injury, and
premises liability cases within a positive team
environment. Salary will be based upon experience and the City of Albuquerque Attorney's
Personnel and Compensation Plan with a City
of Albuquerque Benefits package. Please submit
resume to attention of "Litigation Attorney Application"; c/o Roberta Duran, Fiscal Officer;
P.O. Box 2248, Albuquerque, NM 87103. Application deadline is February 27, 2015
Las Cruces Attorney
Miller Stratvert P.A. is looking for an attorney
for its Las Cruces office. Litigation experience
would be preferred. E-mail cover letter, resume, and references to rlucero@mstlaw.com
Classified
Positions
Associate Attorney
Chapman and Charlebois, P.C. is seeking
an experienced insurance defense attorney
to join our litigation team, providing legal
analysis, representation and advice to local
and national clients. Attorney must have 3+
years of insurance defense experience and be
licensed in NM. Please submit resume and salary requirements to: Roxanna@cclawnm.com.
Experienced Attorney
Associate Attorney
Experienced attorney sought to assist with Indian water rights litigation and related matters
on behalf of Tribal clients of busy, small law
office in downtown Santa Fe. Contract attorney
or associate arrangement will be considered.
Compensation DOE. Please email or fax cover
letter, resumé, writing sample, and reference list
to janelle@jordan-lawfirm.com, (505) 726-4689.
Busy law firm practicing in the areas of Family
Law, Worker’s Compensation and Personal Injury seeking Associate Attorney to immediately
join our growing firm. Attorney will primarily
practice in the area of Family Law and will be
responsible for legal analysis, representation,
document preparation, mediations and litigation. Salary will be consistent with experience.
Please submit cover letter and resume to tamara@couturelaw.com. No phone calls.
35
The New Mexico Environmental
Law Center
The New Mexico Environmental Law Center,
a non-profit public interest law office seeks an
attorney to represent New Mexico community
and environmental groups and Pueblos in their
efforts to protect their air, land, water, and
public health and to seek environmental justice.
Office based in Santa Fe; casework throughout
New Mexico. Minimum of five years of experience, including litigation before administrative
agencies and courts, required. New Mexico bar
membership preferred. Competitive non-profit
salary DOE; generous benefits. Send applications (a cover letter, resume, writing sample, and
three references) to Yana Merrill at ymerrill@
nmelc.org or at 1405 Luisa Street, Suite 5, Santa
Fe, N.M. 87505. Applications will be received
until the position is filled. No telephone calls.
The Law Center is an equal opportunity employer; women and people of color are encouraged to apply. www.nmelc.org
Investigator
State of NM Judicial Standards Commission
(www.nmjsc.org), located in Albuquerque, is
hiring an Investigator. At-will, exempt, unclassified, part-time position with part-time benefits. Initial target salary is $33.00/hour DOE
and budget availability (Exempt Range 99). Up
to 19 hours per week. Assists investigation and
prosecution of cases involving removal, retirement, or discipline of judges. Must possess, exhibit, and maintain exemplary ethics and have
no history of professional discipline. Knowledge
and experience of NM law, court procedures,
and trial preparation necessary. Excellent interpersonal and oral and written communication
skills required. Skill in research, report writing,
all aspects of investigation, witness interview/
interrogation techniques, evidence gathering,
information analysis, and surveillance techniques. Ability to use sound discretion and
judgment, and to adapt to frequently changing
priorities and high stress. Must be able to work
independently and excel in a collaborative,
small office environment. Fluency in Spanish
is an asset. No telephone calls, e-mails, faxes,
or walk-ins accepted. Full announcement and
application instructions at www.nmcourts.gov/
jobs/jobselectpage.php or on announcements
page of Commission website.
Experienced Attorney
Albuquerque Business Law is seeking an
experienced attorney to join a growing law
firm. We are currently expanding and are
open to many practice areas. However, you
must be licensed to practice in the state of
New Mexico. The ideal candidate is a highly
motivated professional that can take initiative and work independently. If interested,
please send a cover letter, resume, and salary
requirements to laurie@abqbizlaw.com.
36
13th Judicial District Attorney
Senior Trial Attorney, Assistant Trial
Attorney, Associate Trial Attorney
Cibola, Sandoval, Valencia Counties
Senior Trial Attorney - This position requires
substantial knowledge and experience in criminal prosecution, rules of criminal procedure and
rules of evidence, as well as the ability to handle
a full-time complex felony caseload. Admission
to the New Mexico State Bar and a minimum
of five years as a practicing attorney are also
required. Assistant Trial Attorney - The 13th
Judicial District Attorney’s Office is accepting
applications for an entry to mid level attorney to
fill the positions of Assistant Trial Attorney. This
position requires misdemeanor and felony caseload experience. Associate Trial Attorney - an
entry level position for Cibola (Grants), Sandoval
(Bernalillo) or Valencia (Belen) County Offices.
The position requires misdemeanor, juvenile and
possible felony cases. Upon request, be prepared
to provide a summary of cases tried. Salary for
each position is commensurate with experience.
Send resumes to Kathleen Colley, District Office
Manager, PO Box 1750, Bernalillo, NM 87004,
or via E-Mail to: KColley@da.state.nm.us.
Deadline for submission of resumes: Open until
positions are filled.
Associate Attorney
Hatcher & Tebo, PA is still growing and so
we’re seeking another associate attorney with
two-plus years of legal experience for our
downtown Santa Fe office. We are looking for
someone not only ready for the challenge of
a heavy caseload, but also motivated to excel
at the practice of law in a litigation-focused
practice; you should be a self-starter who will
hit the ground running to support our growing practice. Hatcher & Tebo, PA defends
individuals, state and local governments and
institutional clients in the areas of insurance
defense, coverage, workers compensation,
employment and civil rights. We offer a great
work environment, competitive salary and
opportunities for future growth. Send your
cover letter, resume and a writing sample via
email to info@hatchertebo.com.
Associate Attorney
Whitener Law Firm, P.A. is currently seeking a
full-time associate attorney to handle Personal
Injury cases. Candidates must be highly motivated, client oriented and will enjoy working
in a fast-paced environment. Candidates must
be licensed to practice in the state of New Mexico. Salary competitive and commensurate
to experience and qualifications. Please send
resume to Nichole Henry, Whitener Law Firm,
P.A., 4110 Cutler Avenue, N.E., Albuquerque,
NM 87110, fax to 505-242-3322 or e-mail to
nichole@whitenerlawfirm.com
Associate Attorney
McCarthy Holthus, LLP, a well-established
multi-state law firm representing financial
institutions and specializing in mortgages
in default is currently seeking an Associate
Attorney to join our team in its Albuquerque, NM office. The responsibilities of the
qualified candidate will include, but are not
limited to, providing legal advice to financial institutions and foreclosure trustees;
research and analyze legal sources and legal
codes; prepares legal briefs, pleadings, appeals, contracts, and any other necessary
legal documentation during the course of
litigation; handle civil litigation cases from
referral to resolution, which may necessitate
the use of written and oral advocacy, motion
practice, discovery, and trial preparation;
participation in mediation, willingness and
ability to understand complex loan documentation and loss mitigation processes; desire
to provide exceptional customer service;
exceptional written and oral advocacy skills;
and openness to creatively engage in setting
new standards in our industry. The qualified
candidate must possess 0-3 years' experience
preferably in the area of finance or representation of financial institutions in real estate related matters. Licensed to practice law in New
Mexico and all New Mexico District Courts.
McCarthy Holthus offers a comprehensive
benefits package including competitive paid
time-Off (PTO). Please send your resumes to:
kmagdaleno@premierbusinesssuport.com
City of Albuquerque
Various Paralegal Position
Four (4) Paralegal positions are available
within the Litigation and Safe City Strike Force
Divisions (DWI Unit & Traffic Arraignment
Sections) of the Legal Department of the City
of Albuquerque. Position Summary: Paralegal
with a civil litigation background who has the
skills, knowledge, and ability to assist attorneys
in civil litigation practice, employment litigation and/or administrative hearings, including
from the inception of a civil lawsuit through
trial. Minimum education and experience
requirements: Associates Degree in Paralegal
Studies, plus three (3) years’ experience as a
paralegal; may substitute two (2) years of additional paralegal experience for the Associates
Degree in Paralegal Studies or a Certificate in
Paralegal Studies, plus five (5) years’ experience as a Legal Secretary/Assistant. ProLaw
and/or experience with a case management
system is desirable. To Apply: All applicants
must submit, by February 27, 2015, a City Application. Resumes will not be accepted in lieu
of the application. An On-Line Application
Process can be accessed at the web site :http://
www.cabq.gov/jobs. Albuquerque NM 87103.
Copies of required certifications, registrations,
and/or licenses, if not attached on-line, must
be provided at the time of interview
Attorney
Gorence & Oliveros, P.C. is seeking a fulltime associate attorney with at least five years
experience in civil litigation. The position
requires exceptional research and writing
skills, as well as, experience in litigation. This
is primarily a research and writing position.
Competitive salary and benefits DOE. Apply
in confidence by emailing resume, references
and a writing sample to al@golaw.us.
Las Cruces Attorney
Holt Mynatt Martínez P.C., an AV-rated law
firm in Las Cruces, New Mexico is seeking an associate attorney with 1–5 years of
experience to join our team. Duties would
include providing legal research, analysis,
and writing, drafting pleadings and other
documents, conducting discovery, preparing
for and attending administrative and judicial
hearings, up to and including trial. The firm’s
practice areas include insurance defense,
civil rights defense, commercial litigation,
municipal law, employment defense, and the
occasional plaintiff’s case. Candidates need to
have strong organizational and writing skills,
exceptional communication skills, and the
ability to interact and develop collaborative
relationships. Excellent salary and benefits.
Please send your cover letter, resume, writing sample and references to Blaine Mynatt,
Managing Director, at btm@hmm-law.com.
Immigration Attorney Vacancy Catholic Charities of Las Cruces
Applicants should submit a resume and
cover letter to our Exec Director Ken
Ferrone, kf@catholiccharitiesdlc.org or
la@catholiccharitiesdlc.org.
Billing Clerk/Courier
BILLING CLERK/COURIER needed fulltime for downtown law firm. Strong knowledge of TABS III required. Other duties include mail processing, court filings/errands,
and scanning. Two to three years of experience in a law firm is desired. Please submit
resumes to susan@moseslaw.com.
Paralegal
The Santa Fe office of Hinkle Shanor LLP
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. Please email resume to:
gromero@hinklelawfirm.com
Legal Secretary/Assistant
Civil litigation firm seeking Legal Secretary/
Assistant with minimum 3- 5 years’ experience, including knowledge of local court rules
and filing procedures. Excellent clerical, organizational, computer & word processing skills
required. Fast-paced, friendly environment.
Benefits. If you are highly skilled, pay attention to detail & enjoy working with a team,
email resume to: Kay@OnSiteHiring.com
Legal Secretary
SONOSKY, CHAMBERS, SACHSE, MIELKE & BROWNELL, LLP, the Albuquerque
office (3 attorneys) of a national Indian law
firm seeks an experienced legal secretary/
assistant, full or part-time. Must be highly
organized, professional, have top-notch
computer and communication skills, and be
a team player. Excellent salary and benefits
package. To be considered for this position
please e-mail cover letter, resume and 3 references to amielke@abqsonosky.com.
Paralegal/ Legal Secretary
KENNEDY KENNEDY & IVES, LLC, a civil
litigation firm in Albuquerque, is seeking a
Paralegal/ Legal Secretary with minimum
3 years’ experience, including knowledge of
local court rules, filing procedures and trial
experience. Excellent clerical, organizational,
computer & word processing skills required.
Must be highly organized and detail oriented
with good customer service and multi-tasking
skills. This is a fast-paced and friendly environment. Salary & benefits are negotiable depending on experience. Email letter of interest
with professional references, and resume to:
esp@civilrightslawnewmexico.com.
Paralegal
Litigation paralegal with background in
large volume document control/management, trial experience, and familiar with
use of computerized databases. This is an
opportunity for a highly motivated, task &
detail-oriented professional to work for an
established, well-respected downtown law
firm. Competitive benefits. Email resume to:
Kay@OnSiteHiring.com
Paralegal
City of Albuquerque
Legal Secretary Position
Legal Secretary Position is available within
the Litigation of the Legal Department of
the City of Albuquerque. Position Summary:
will perform a variety of responsible legal
secretarial duties in support of a assigned
attorney or attorneys including preparing
and reviewing legal documents; perform
the more difficult and complex clerical duties with the assigned work unit and provide
secretarial and administrative support to an
assigned division head. Minimum Education
and Experience requirements: Associates’
degree in business administration or a related
field, may substitute three (3) years secretarial
experience to include two (2) years as a Legal
Secretary. ProLaw and/or experience with a
case management system is desirable. To Apply: All applicants must submit, by February
27, 2015, a City Application. Resumes will
not be accepted in lieu of the application. An
On-Line Application Process can be accessed
at the web site www.cabq.gov\jobs. Copies
of required certifications, registrations, and/
or licenses, if not attached on-line, must be
provided at the time of interview.
Paralegal wanted for Plaintiffs civil litigation
firm. Growing uptown firm seeks a full time
experienced paralegal that is well organized;
detail oriented, and has the ability to work
independently. Candidate must have prior
experience in civil litigation with an emphasis in personal injury. 3+ years experience
preferred. Salary commensurate with experience. Please forward resume to: Hiring
Partner, Bleus & Assoc. LLC, 2633 Dakota,
NE, Albuquerque, NM 87110 or email attn.
Tony at bleuslawhotmail.com.
Legal Secretary/ Receptionist
Albuquerque, NM
The Albuquerque office of Butler Snow LLP
seeks a Legal Secretary/ Receptionist with 3+
years’ experience and a high school diploma
or equivalent. Candidates should have excellent clerical, organizational, computer
and word processing skills. The position requires the ability to work independently in
a fast-paced environment. If you are highly
skilled, pay attention to detail and enjoy
working with a team, please view the full
job description and apply for the position at
www.butlersnow.com.
37
Discovery Legal Assistant/ Paralegal
Busy Personal Injury Law Firm in search of
FT Discovery Legal Assistant/ Paralegal M-F
9:00 - 5:00. One year related experience and/
or training, or equivalent combination of
education and experience. Individual must
have exceptional organizational skills, be
able to multitask, work under pressure, and
understand the importance of deadlines.
Daily tasks include potential client intake,
draft discovery pleadings and other legal
documents. Other daily tasks would include
calendaring, preparing hearing, deposition,
witness and mediation binders, copy, fax and
file (if clerical support not available) related
to client matters as well as conduct research,
including but not limited to Accurint, Internet, etc. The ideal candidate will be proficient
with Microsoft Outlook, Word and Excel.
Please send resume with references, as an
attachment, to LegalOfficeMgr@Gmail.com.
Please include "Discovery LA - Paralegal" in
the subject line to be considered. No phone
calls or walk-ins please
Office Space
Office Available for Rent
One office available for rent, including secretarial area, 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 505-2436721 or gbischof@dcbf.net
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.
Offices Available
Two offices available for rent in Jefferson/
Masthead area. Share one-story building with
established law firm. Reception, conference
room, kitchen, wifi, copier, phones included.
Short walk to restaurants. Referral work
available. $500 per month. 505-830-2076 ext.
108 or susan@cadiganlaw.com.
Brand New All Inclusive Beautiful
Law Offices Available Now!
Starting at only $379 per month! We have
space available in the 500 Marquette building in downtown Albuquerque, the II Park
Square building in Uptown Albuquerque
and the 150 Washington building next to
the Plaza in Santa Fe. Call or email Christina Sharp at Christina.sharp@regus.com
505.203.5754.
Taos Conference and Office Space
Taos conference and office space available
for depositions and mediations. Call Robyn
575-758-1225
Services
Available for Research and
Writing Assignments
Attorney with 7 years appellate court experience available for research and writing
assignments. Reliable and thorough: motions,
briefs, research. Email llhouselaw@gmail.
com or call 505-715-6566 or 505-281-9293.
Orthopedic Surgeon
Orthopedic Surgeon available for case review,
opinions, exams. Rates quoted per case. Send
inquiries to: odewitt@ alumni.rice.edu
Experienced Attorney Available
for Contract Work
Not ready to hire full time or part time attorneys, but need help? Licensed NM attorney
with 25+ years of civil practice experience
(plaintiff and defendant). Available for small
research projects, or to be your second chair in
lengthy, complex litigation. Extensive experience in document organization and analysis,
depositions, motions practice and trial preparation. Willing to enter my appearance with
you or work in the background! Brief-writing
is my forte; but I am available to do what you
need to successfully litigate your case. Reasonable rates. References and writing samples
available. Diane Donaghy at (505)281-3514,
or email me: jemcsa@nmia.com.
38
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
2015 Annual Meeting–
Bench and Bar Conference
Save the date!
Sept. 30-Oct. 2 (Wed.-Fri.)
k
Boo !
now
1 Lake Avenue, Colorado Springs, CO 80906 • 800-634-7711
https://resweb.passkey.com/go/SBARNM
$229 single/double*
Suites – contact the Broadmoor at 719-471-6254 or jpitcher@broadmoor.com.
Parking - $22 self/day; $24 overnight valet/day
*
Cutoff date: Aug. 30, 2015
39
To make your space reservation,
please contact Marcia Ulibarri
505-797-6058 • mulibarri@nmbar.org
e:
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2/25 - State Bar

Transcription

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