8/24 - State Bar

Transcription

8/24 - State Bar

August 24, 2016 • Volume 55, No. 34
Inside This Issue
Notices .................................................................. 4
U.S. District Court, District of New Mexico
Magistrate Judge Appointment......................... 4
State Bar Networking Open House for
Students and Lawyers.......................................... 5
Disciplinary Quarterly Report:
April 1–June 30, 2016.......................................... 7
Clerk’s Certificates............................................. 13
From the New Mexico Supreme Court
2016-NMSC-017, No. S-1-SC-35248:
AFSCME v. Board of County
Commissioners of Bernalillo County ...... 18
2016-NMSC-018, No. S-1-SC-34873:
Estate of Brice v.
Toyota Motor Corporation ........................ 23
2016-NMSC-019, No. S-1-SC-35460:
In the Matter of Armando Torres, Esq. ...... 30
2016-NMSC-020, No. S-1-SC-35255:
State v. Tufts................................................... 33
2016-NMSC-021, No. S-1-SC-34400:
State v. Armijo............................................... 35
Overlook, by Sarah Hartshorne (see page 3)
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Special rates may still be available at the State Bar group rate.
Contact Terri Nelson with Vacations To Go.
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CENTER FOR LEGAL EDUCATION
For more information visit www.nmbar.org/CLEAtSea.
2
Bar Bulletin - August 24, 2016 - Volume 55, No. 34
Table of Contents
Officers, Board of Bar Commissioners
J. Brent Moore, President
Scotty A. Holloman, President-elect
Gerald G. Dixon, Secretary Treasurer
Mary Martha Chicoski, Immediate Past President
Board of Editors
Bruce Herr, Chair
Jamshid Askar
Nicole L. Banks
Alex Cotoia
Curtis Hayes
Notices ..................................................................................................................................................................4
Disciplinary Quarterly Report: April 1–June 30, 2016...........................................................................7
Continuing Legal Education Calendar........................................................................................................8
Writs of Certiorari.............................................................................................................................................10
Court of Appeal Opinions List.....................................................................................................................12
Clerk’s Certificates............................................................................................................................................13
Recent Rule-Making Activity........................................................................................................................17
Opinions
2016-NMSC-017, No. S-1-SC-35248:
AFSCME v. Board of County Commissioners of Bernalillo County ..................................... 18
2016-NMSC-018, No. S-1-SC-34873: Estate of Brice v. Toyota Motor Corporation ...... 23
2016-NMSC-019, No. S-1-SC-35460: In the Matter of Armando Torres, Esq. ................. 30
Andrew Sefzik
Michael Sievers
Mark Standridge
Nancy Vincent
Carolyn Wolf
State Bar Staff
Executive Director Joe Conte
Communications Coordinator/Editor
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
©2016, 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
email: address@nmbar.org • www.nmbar.org
August 24, 2016, Vol. 55, No. 34
2016-NMSC-020, No. S-1-SC-35255: State v. Tufts................................................................... 33
2016-NMSC-021, No. S-1-SC-34400: State v. Armijo................................................................ 35
Advertising....................................................................................................................................................... 41
Workshops and Legal Clinics
Meetings
August
August
25
Natural Resources, Energy and
Environmental Law Section BOD,
Noon, teleconference
24
Consumer Debt/Bankruptcy Workshop
6–9 p.m., State Bar Center, Albuquerque,
505-797-6094
26
Immigration Law Section BOD,
Noon, State Bar Center
September
7
Divorce Options Workshop
6–8 p.m., State Bar Center, Albuquerque,
505-797-6003
September
6
Bankruptcy Law Section BOD,
Noon, U.S. Bankruptcy Court
7
Civil Legal Clinic
10 a.m.–1 p.m.,
Second Judicial District Court,
Albuquerque, 1-877-266-9861
6
Health Law Section BOD,
9 a.m., teleconference
7
Employment and Labor Law Section BOD,
8
Business Law Section BOD,
4 p.m., teleconference
8
Elder Law Section BOD,
8
Public Law Section BOD,
Noon, teleconference
7
Common Legal Issues for
Senior Citizens Workshop
Workshop: 10–11:15 a.m.
POA AHCD Clinic: 12:30–1:30 p.m.,
Clayton Senior Citizens Center, Clayton,
1-800-876-6657
7
Sandoval County Free Legal Clinic
10 a.m.–2 p.m., 13th Judicial District Court,
Bernalillo, 505-867-2376
About the Cover Image: Overlook, 40 by 40
The focus of Sarah Hartshorne’s work has been on capturing the unique in the ordinary, the beauty in the
mundane. Like the impressionists, she paints in oil from everyday life and the world around her, sharing what
often goes unnoticed and exploring the play of light and shadow.
3
Notices
Court News
Sixth Judicial District Court
Announcement of Vacancy
A vacancy on the Sixth Judicial District
Court, Luna County, will exist as of Aug. 27
due to the retirement of Hon. Daniel Viramontes, effective Aug. 26. The assignment
for this position is a general bench assignment, Division IV, and will be located in
Deming. Inquiries regarding the details or
assignment of this judicial vacancy should
be directed to the Administrator of the
Court. Alfred Mathewson, chair of the
Judicial Nominating Commission, invites
applications for this position from lawyers
who meet the statutory qualifications in
Article VI, Section 28 of the New Mexico
Constitution. Applications may found at
lawschool.unm.edu/judsel/application.
php. The deadline is 5 p.m., Sept. 14.
Applicants seeking information regarding election or retention if appointed
should contact the Bureau of Elections
in the Office of the Secretary of State.
The District Court Judicial Nominating
Committee will meet at 8:30 a.m., Sept.
22, to interview applicants for the position
at the Luna County Judicial Complex, 855
South Platinum Avenue, Deming. The
Commission meeting is open to the public
and anyone who has comments will have
an opportunity to be heard.
U.S. District Court,
District of New Mexico
Magistrate Judge Appointment
The Judicial Conference of the U.S. has
authorized the appointment of a full-time
U.S. magistrate judge for the District of
New Mexico at Las Cruces. The current
annual salary of the position is $186,852.
The term of office is eight years. The full
public notice and application forms for
the magistrate judge position are posted
in the U.S. District Court Clerk’s Office
of all federal courthouses in New Mexico,
and on the Court’s website at www.nmd.
uscourts.gov. Application forms may also
be obtained by calling 575-528-1439. Applications must be received by Sept. 30.
All applications will be kept confidential
unless the applicant consents to disclosure.
State Bar News
Attorney Support Groups
• Sept. 12, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, King Room in the Law
Library (group meets on the second
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Professionalism Tip
With respect to the public and to other persons involved in the legal system:
I will keep current in my practice areas, and, when necessary, will associate with
or refer my client to other more knowledgeable or experienced counsel.
Monday of the month). Teleconference participation is now available.
Dial 1-866-640-4044 and enter code
7976003#.
• Sept. 19, 7:30 a.m.
First United Methodist Church, 4th and
Lead SW, Albuquerque (group meets
the third Monday of the month.)
• Oct. 3, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month
but will skip September due to Labor
Day.)
For more information, contact Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
Animal Law Section
September Animal Talk,
Blood Ivory: Wildlife Trafficking
in the U.S.
The Animal Law Section and ABQ
BioPark Zoo bring members a look into
the world of wildlife trafficking and its
impact on elephant species. Attorneys
Ruth Musgrave and Susan George plus
BioPark elephant staff will talk about what
is being done in New Mexico to help save
the species from extinction. The Animal
Talk will be from 12:45-1:30 p.m., Sept. 10,
at the ABQ BioPark Zoo Colores Education Building. Activities are included with
regular admission. For more information,
contact Animal Law Section Past Chair,
Judy Durzo at jdurzo@mac.com.
Appellate Practice Section
Brown Bag Lunch with
Judge Jonathan B. Sutin
Join the Appellate Practice Section and
Young Lawyers Division for a brown bag
lunch at noon, Sept. 9, at the State Bar
Center with guest Judge Jonathan B. Sutin
of the New Mexico Court of Appeals. The
brown bag lunch series is informal and
is intended to create an opportunity for
appellate judges and practitioners who appear before them to exchange ideas and get
to know each other better. Those attending
are encouraged to bring their own “brown
bag” lunch. R.S.V.P. with Tim Atler, tja@
atlerfirm.com. Space is limited.
Paralegal Division
Criminal Law/Civil Liabilities CLE
The State Bar Paralegal Division
invites members of the legal community
to attend the Division’s Criminal Law/
Civil Liabilities CLE program (3.0 G,
MCLE pending) from 9 a.m.–12:15 p.m.,
Sept. 24, at the State Bar Center. Topics
include the unauthorized practice of law
and increasing liabilities for paralegals,
financial discovery, figuring out what you
do and don’t have and an update on case
management deadline changes. Remote
connections for audio or video will not be
available. Registration is $35 for Division
members, $50 for non-member paralegals,
$55 for attorneys. For more information
and registration instructions, visit www.
nmbar.org > About us > Divisions >
Paralegal Division > CLE Programs (click
on “See Flyer” at the bottom of the page)
or contact Carolyn Winton, 505-858-4433
or Linda Murphy, 505-884-0777.
Senior Lawyers Division
Judicial Service Awards
The Senior Lawyers Division presents
an award to any judge from a New Mexico
court who has completed an aggregate of
25 years of judicial service. Any judge who
fits this qualification should contact Judge
Bob Scott (ret., U.S. Magistrate Court) at
505-255-5138 or flyings421@gmail.com.
Solo and Small Firm Section
Fall Luncheon Presentation
Schedule Begins with Former
Sheriff Darren White
The Solo and Small Firm Section will
again sponsor monthly luncheon presentations on unique law-related subjects and
this fall’s schedule opens with former
Department of Public Safety Secretary and
Bernalillo County Sheriff Darren White.
White will present “The Journey from
Drug War Warrior to Legalized Marijuana”
on Sept. 20. Albuquerque attorney Matt
Coyte will discuss various penal issues on
Oct. 18 with “New Mexico’s Prisons and
Jails, are We Making Things Worse?” On
Nov. 15 Fred Nathan, executive director
of Think New Mexico, a results-oriented
think tank serving New Mexicans, will
discuss the work of Think New Mexico
and various policy issues facing the 2017
legislative session. On Jan. 17, 2017, Ron
Taylor will share his lawyerly insights as a
juror in a long murder trial. All presentations will take place from noon-1 p.m.
at the State Bar Center. Contact Breanna
Henley at bhenley@nmbar.org to R.S.V.P.
Young Lawyers Division
State Bar Open House for
Students and Lawyers
The Young Lawyers Division and UNM
School of Law Student Bar Association
invite all members of the State Bar and
students to meet, mingle, and exchange
information about opportunities within
the State Bar at the annual State Bar Open
House from 5:30-7:30 p.m., Sept. 13, at the
State Bar Center. Food and beverages will
be served. R.S.V.P. with Breanna Henley at
bhenley@nmbar.org by Sept. 9.
UNM
Law Library
Hours Through Dec. 18
Building & Circulation
Monday–Thursday 8 a.m.–8 p.m.
Friday
8 a.m.–6 p.m.
Saturday
10 a.m.–6 p.m.
Sunday
noon–6 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–Sunday
Closed
Holiday Closures
Sept. 5 (Labor Day)
Nov. 24–25 (Thanksgiving)
Other Bars
Albuquerque Lawyers’ Club
Season Starts with Luncheon
Guest Judge M. Monica Zamora
Albuquerque Lawyers’ Club announces
the start of its 2016-2017 session. Membership dues for the year are $250 and
will include nine lunches and two hours
of ethics/professionalism CLE credits.
Lunch meetings are held at noon, the first
Wednesday of September through May,
at Seasons Rotisserie and Grill. Nonmembers are welcome to attend ($30 in
advance, $35 at the door).
The first meeting will be held Sept.
7 and the speaker is Judge M. Monica
Zamora of the New Mexico Court of Appeals. Judge Zamora will be introduced
by Judge Miles Hanisee, also of the Court
of Appeals. For more information, visit
the Club’s brand new website at www.
AlbuquerqueLawyersClub.com
First Judicial District Bar
Association
Featured
Member Benefit
September Buffet Luncheon
Join the First Judicial District Bar
Association for its next buffet luncheon
from noon–1 p.m., Sept. 26, at the Hilton
Hotel, 100 Sandoval Street, Santa Fe.
Kyle Harwood, partner at Egolf + Ferlic
+ Harwood, will give a Santa Fe land
and water update, including a discussion
of the Aamodt case and the impact of
recent amendments to the county code.
Attendance is $15 and includes a buffet
lunch. R.S.V.P. by 5 p.m., Sept. 22, to erin.
mcsherry@state.nm.us. Payment should
be made upon arrival at the event with
cash, card or check to the “First Judicial
District Bar Association” or “FJDBA”.
H. Vearle Payne American
Inn of Court
Accepting New Membership
Requests
The H. Vearle Payne American Inn
of Court in Albuquerque is currently accepting new membership requests from
attorneys and judges (active or retired) for
its 2017 season which begins Sept. 13 and
runs through May 9, 2017. The Inn meets
on the second Tuesday of each month,
excluding December, for dinner and
discussions about pertinent topics. Judges
and practitioners in the Albuquerque and
surrounding areas interested in enhancing
skills and networking should send a letter
of interest to Administrator, H. Vearle
Payne American Inn of Court, PO Box
40577, Albuquerque, NM 87196-0577 or
hvpinnofcourt@outlook.com. Dues are are
$370 for master benchers (10 or more years
in practice or a judge), $310 for barristers
(5–10 years in practice) and $245 for associates (up to 4 years of practice). Dues
cover national membership fee, all dinners
and CLE credits.
Hispanic National Bar
Association
Presidential Reception
Join community and business leaders
to welcome Hispanic National Bar Association President Robert Maldonado
to Albuquerque at an event at 5:30 p.m.,
Aug. 26, at Farm and Table in Los Ranchos de Albuquerque. Enjoy Southwest
World’s leading, cloud-based legal practice
management software. Take control of
your time, simplify operations and improve
productivity. Integrates seamlessly with
applications like Fastcase, Dropbox, Gmail and
more. State Bar members receive a 10 percent
lifetime discount.
Sign up today at www.clio.com
with the code NMBAR.
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
Address Changes
All New Mexico attorneys must notify
both the Supreme Court and the State
Bar of changes in contact information.
Supreme Court
Email:attorneyinfochange
@nmcourts.gov
Fax: 505-827-4837
Mail:PO Box 848
Santa Fe, NM 87504-0848
State Bar
Email: address@nmbar.org
Fax: 505-797-6019
Mail: PO Box 92860
Albuquerque, NM 87199
Online:www.nmbar.org
5
cuisine, Spanish guitar and a flamenco
performance while meeting President
Maldonado and celebrating the HNBA.
R.S.V.P. to Susan Harris, 505-848-9755 or
susanh@modrall.com.
Oliver Seth American
Inn of Court
Join a State Bar Practice Section
Meetings Begin in September
Benefits of Membership include:
The Oliver Seth American Inn of
Court meets on the third Wednesday
of the month from September until
May. Meetings address a pertinent topic
and conclude with dinner. Those who
reside and/or practice in Northern New
Mexico and want to enhance skills and
meet some good lawyers should send a
letter of interest to the Honorable Paul J.
Kelly Jr., U.S. Court of Appeals—Tenth
Circuit, PO Box 10113, Santa Fe, NM
87504-6113.
• Practice area-targeted resources • Legislative advocacy
• Networking
• Public service opportunities
• Leadership experience
• And so much more!
• Discounts on CLE programs
Up to $10-25 for one year
Choose from 20 practice sections
Other News
New Mexico Society of
Certified Public Accountants
Network with Attorneys, Bankers
and CPAs
The New Mexico Society of Certified
Public Accountants invites local attorneys
to make new friends, establish business
contacts and share time with fellow professionals in a congenial environment during
its ABC Networking Event at 4:30 p.m.,
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Browse sections and join today at www.nmbar.org > About Us > Sections
Aug. 24, at the Society Office located at
3400 Menaul Blvd. NE in Albuquerque.
Appetizers, beer and wine will be served.
The event is free but R.S.V.P.s are required.
Contact Kelcy Flanagan at kelcy@nmscpa.
org or 505-246-1699 to attend.
Report by Disciplinary Counsel
Reporting Period: April 1–June 30, 2016
Disciplinary Quarterly Report
Final Decisions
Final Decisions of the NM Supreme Court ................................. 6
Matter of Anthony Spratley, Esq. (Disciplinary No. 112015-732). The New Mexico Supreme Court accepted a
conditional agreement and entered an order suspending
Respondent from the practice of law for one (1) year for trust
account violations. The Court deferred the suspension and
placed Respondent on probation with conditions.
Matter of Anthony Ray Rascon, Esq. (Disciplinary No. 082015-728). The New Mexico Supreme Court accepted a
conditional agreement and entered an order suspending
Respondent from the practice of law for eighteen (18)
months for delaying a matter and trust account violations.
The Court deferred the suspension and placed Respondent
on probation with conditions.
Matter of Michelle Renee Mladek, Esq. (Disciplinary No.
11-2013-680). The New Mexico Supreme Court entered an
order suspending Respondent from the practice of law for
a period of twelve (12) months for violating the Supreme
Court Orders of February 18, 2015 and November 12, 2015.
Matter of Jason S. Montclare, Esq. (Disciplinary No. 112013-682). The New Mexico Supreme Court issued a Public
Censure in compliance with the Supreme Court Order dated
February 2, 2016.
Summary Suspensions
Total number of attorneys summarily suspended....................... 0
Administrative Suspensions
Total number of attorneys administratively suspended.............. 0
Disability Suspensions
Total number of attorneys placed on disability suspension ...... 2
Matter of ………………… (Sealed matter) New Mexico
Supreme Court entered an order placing Respondent on
disability inactive status effective June 13, 2015. Pending
disciplinary matters, if any, were stayed until Respondent is
eligible for reinstatement.
Matter of ………………… (Sealed matter) New Mexico
Supreme Court entered an order placing Respondent on
disability inactive status effective June 13, 2015. Pending
disciplinary matters, if any, were stayed until Respondent is
eligible for reinstatement.
conduct involving dishonesty, fraud, deceit or misrepresentation; and engaging in conduct that is prejudicial to the
administration of justice.
Charges were filed against an attorney for allegedly knowingly disobeying an obligation under the rules of a tribunal;
failing to give full cooperation to disciplinary counsel;
engaging in conduct involving deceit or misrepresentation;
and engaging in conduct prejudicial to the administration
of justice.
Charges were filed against an attorney for allegedly failing to
hold property of clients or third persons separate from the
lawyer’s own property and failure to keep complete records.
Petitions for Administrative Suspension Filed
Petitions for administrative suspension filed............................... 0
Petitions for Reciprocal Discipline Filed
Petitions for reciprocal discipline filed ......................................... 0
Petitions for Reinstatement Filed
Petitions for reinstatement filed ....................................................0
Formal Reprimands
Total number of attorneys formally reprimanded ...................... 0
Informal Admonitions
Total number of attorneys admonished .......................................1
An attorney was informally admonished for failing to
provide competent representation to a client; failing to act
with reasonable diligence and promptness in representing a
client; failing to keep the client reasonably informed about
the status of the matter; and engaging in conduct that is
prejudicial to the administration of justice in violation of
Rules 16-101, 16-103, 16-104, and 16-804(D) of the Rules
of Professional Conduct.
Letters of Caution
Total number of attorneys cautioned ...........................................9
Attorneys were cautioned for the following conduct: (1)
overreaching/excessive fees; (2) harassment (two letters of
caution issued); (3) conflict of interest; (4) failure to communicate; (5) improper solicitation by employee; and (6) failure
to protect interest of client (three letters of caution issued).
Charges Filed
Charges were filed against an attorney for allegedly failing
to provide competent representation to a client; counseling
and assisting a client in a course of conduct that the lawyer
knows is fraudulent; failing to act with reasonable diligence
and promptness in representing a client; failing to take steps
to protect the client’s interests; bringing an action that has
no basis in law or fact that is not frivolous; making a false
statement to a tribunal; failing to make reasonable diligent
efforts to comply with a legally proper discovery request by
an opposing party; acting as an advocate at a trial in which
the lawyer is likely to be a necessary witness; engaging in
7
Legal Education
August
26
I Always Feel Like Somebody’s
Watching Me, And I Have No
Privacy: Digital Evidence and the
4th Amendment
6.7 G
Live Seminar, Las Cruces
New Mexico Criminal Defense
Lawyers Association
www.nmcdla.org
31
Lawyer Ethics and Disputes with
Clients
1.0 EP
Teleseminar
Center for Legal Education of
NMSBF
www.nmbar.org
September
9
2015 Fiduciary Litigation Update
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
9
Wildlife and Endangered Species
on Public and Private Lands
6.0 G
Webcast/Live Seminar, Albuquerque
www.nmbar.org
15
Liquidated Damages in Contracts
1.0 G
Teleseminar
www.nmbar.org
15
Workers’ Compensation Law and
Practice Seminar
5.6 G, 1.0 EP
Live Seminar, Santa Fe
Sterling Education Services
www.sterlingeducation.com
16
27th Annual Appellate Practice
Institute
6.4 G, 1.0 EP
www.nmbar.org
20
2015 Mock Meeting of the Ethics
Advisory Committee
2.0 EP
Live Replay, Albuquerque
www.nmbar.org
20
Legal Writing—From Fiction to
Fact (Morning Session 2015)
2.0 G, 1.0 EP
www.nmbar.org
20
Legal Writing—From Fiction to
Fact (Afternoon Session 2015)
2.0 G, 1.0 EP
www.nmbar.org
20
Spring Elder Law Institute (2016)
6.2 G
www.nmbar.org
20
Estate Planning for Firearms
1.0 G
Teleseminar
www.nmbar.org
22
EEOC Update, Whistleblowers
and Wages (2015 Employment and
Labor Law Institute)
3.2 G
www.nmbar.org
22
The New Lawyer – Rethinking Legal
Services in the 21st Century (2015)
4.5 G, 1.5 EP
www.nmbar.org
22
Law Practice Succession – A Little
Thought Now, a Lot Less Panic
Later (2015)
2.0 EP
www.nmbar.org
22
Guardianship in NM: the Kinship
Guardianship Act (2016)
5.5 G, 1.0 EP
www.nmbar.org
23
2016 Tax Symposium
6.0 G, 1.0 EP
www.nmbar.org
23
Ethics and Keeping Secrets
or Telling Tales in Joint
Representations
1.0 EP
Teleseminar
www.nmbar.org
29
Estate Planning for Liquidity
1.0 G
Teleseminar
www.nmbar.org
29
Legal Technology Academy for New
Mexico Lawyers (2016)
4.0 G, 2.0 EP
www.nmbar.org
Listings in the Bar Bulletin CLE Calendar are derived from course provider submissions. All MCLE approved continuing legal education courses can be listed free of
charge. Send submissions to notices@nmbar.org. Include course title, credits, location, course provider and registration instructions.
8
Legal Education
www.nmbar.org
September
29
Civility and Professionalism
(Ethicspalooza Redux – Winter
2015 Edition)
1.0 EP
www.nmbar.org
29
The US District Court: The Next
Step in Appealing Disability
Denials (2015)
3.0 G, 1.0 EP
www.nmbar.org
29
Invasion of the Drones: IP-Privacy,
Policies, Profits, (2015 Annual
Meeting)
1.5 G
www.nmbar.org
3
Mastering Microsoft Word in the
Law Office
6.2 G
www.nmbar.org
13
27
Spring Elder Law Institute (2016)
6.2 G
www.nmbar.org
4
Indemnification Provisions in
Contracts
1.0 G
Teleseminar
www.nmbar.org
13–14 34th Annual Advanced Oil, Gas &
Energy Resources Law
10.3 G, 1.7 EP
Video Replay, Santa Fe
State Bar of Texas
www.texasbarcle.com
5
Managing Employee Leave
1.0 G
Teleseminar
www.nmbar.org
14
October
10–14 Basic Practical Regulatory
Training for the Natural Gas Local
Distribution Industry
24.5 G
Live Seminar, Albuquerque
Center for Public Utilities New
Mexico State University
business.nmsu.edu
10–14 Basic Practical Regulatory Training
for the Electric Industry
26.2 G
Live Seminar, Albuquerque
Center for Public Utilities New
Mexico State University
business.nmsu.edu
Joint Ventures Between For-Profits
and Non-Profits
1.0 G
Teleseminar
www.nmbar.org
Citizenfour—The Edward Snowden
Story
3.2 G
Live Seminar
Federal Bar Association, New Mexico
Chapter
505-268-3999
21
Ethics and Cloud Computing
1.0 EP
Teleseminar
www.nmbar.org
25
Fiduciary Standards in Business
Transactions: Good Faith and Fair
Dealing
1.0 G
Teleseminar
www.nmbar.org
27
More Reasons to be Skeptical of
Expert Witnesses (2015)
5.0 G, 1.5 EP
www.nmbar.org
27
2015 Federal Practice Tips and
Advice From U.S. Magistrate Judges
2.0 G, 1.0 EP
www.nmbar.org
27
Everything Old is New Again –
How the Disciplinary Board Works
(Ethicspalooza Redux—Winter
2015 Edition)
1.0 EP
www.nmbar.org
November
2
Estate Planning for Religious and
Philosophical Beliefs of Clients
1.0 G
Teleseminar
www.nmbar.org
10
Acquisitions of Subsidiaries and
Divisions
1.0 G
Teleseminar
www.nmbar.org
10
Estate Planning and Retirement
Benefits
4.0 G
Live Seminar
Santa Fe Estate Planning Council
www.sfestateplanning.com
9
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 May 20, 2016
Petitions for Writ of Certiorari Filed and Pending:
Date Petition Filed
No. 35,903 Las Cruces Medical v.
Mikeska
COA 33,836 05/20/16
No. 35,900 Lovato v. Wetsel
12-501 05/18/16
No. 35,898 Rodriguez v. State
12-501 05/18/16
No. 35,897 Schueller v. Schultz
COA 34,598 05/17/16
No. 35,896 Johnston v. Martinez
12-501 05/16/16
No. 35,894 Griego v. Smith
12-501 05/13/16
No. 35,893 State v. Crutcher
COA 34,207 05/12/16
No. 35,891 State v. Flores
COA 35,070 05/11/16
No. 35,895 Caouette v. Martinez
12-501 05/06/16
No. 35,889 Ford v. Lytle
12-501 05/06/16
No. 35,886 State v. Otero
COA 34,893 05/06/16
No. 35,885 Smith v. Johnson
12-501 05/06/16
No. 35,884 State v. Torres
COA 34,894 05/06/16
No. 35,882 State v. Head
COA 34,902 05/05/16
No. 35,880 Fierro v. Smith
12-501 05/04/16
No. 35,873 State v. Justin D.
COA 34,858 05/02/16
No. 35,876 State v. Natalie W.P.
COA 34,684 04/29/16
No. 35,870 State v. Maestas
COA 33,191 04/29/16
No. 35,864 State v. Radosevich
COA 33,282 04/28/16
No. 35,866 State v. Hoffman
COA 34,414 04/27/16
No. 35,861 Morrisette v. State
12-501 04/27/16
No. 35,863 Maestas v. State
12-501 04/22/16
No. 35,857 State v. Foster
COA 34,418/34,553 04/19/16
No. 35,858 Baca v.
First Judicial District Court 12-501 04/18/16
No. 35,853 State v. Sena
COA 33,889 04/15/16
No. 35,849 Blackwell v. Horton
12-501 04/08/16
No. 35,835 Pittman v. Smith
12-501 04/01/16
No. 35,828 Patscheck v. Wetzel
12-501 03/29/16
No. 35,825 Bodley v. Goodman
COA 34,343 03/28/16
No. 35,822 Chavez v. Wrigley
12-501 03/24/16
No. 35,821 Pense v. Heredia
12-501 03/23/16
No. 35,814 Campos v. Garcia
12-501 03/16/16
No. 35,804 Jackson v. Wetzel
12-501 03/14/16
No. 35,803 Dunn v. Hatch
12-501 03/14/16
No. 35,802 Santillanes v. Smith
12-501 03/14/16
No. 35,771 State v. Garcia
COA 33,425 02/24/16
No. 35,749 State v. Vargas
COA 33,247 02/11/16
No. 35,748 State v. Vargas
COA 33,247 02/11/16
No. 35,747 Sicre v. Perez
12-501 02/04/16
No. 35,746 Bradford v. Hatch
12-501 02/01/16
No. 35,722 James v. Smith
12-501 01/25/16
No. 35,711 Foster v. Lea County
12-501 01/25/16
No. 35,718 Garcia v. Franwer
12-501 01/19/16
No. 35,717 Castillo v. Franco
12-501 01/19/16
No. 35,702 Steiner v. State
12-501 01/12/16
10
No. 35,682
No. 35,677
No. 35,669
No. 35,665
No. 35,664
No. 35,657
No. 35,671
No. 35,649
No. 35,641
No. 35,661
No. 35,654
No. 35,635
No. 35,674
No. 35,653
No. 35,637
No. 35,268
No. 35,522
No. 35,495
No. 35,479
No. 35,474
No. 35,466
No. 35,422
No. 35,372
No. 35,370
No. 35,353
No. 35,335
No. 35,371
No. 35,266
No. 35,261
No. 35,097
No. 35,099
No. 34,937
No. 34,932
No. 34,907
No. 34,680
No. 34,775
No. 34,706
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Peterson v. LeMaster
Sanchez v. Mares
Martin v. State
Kading v. Lopez
Martinez v. Franco
Ira Janecka
Riley v. Wrigley
Miera v. Hatch
Garcia v. Hatch Valley
Public Schools
Benjamin v. State
Dimas v. Wrigley
Robles v. State
Bledsoe v. Martinez
Pallares v. Martinez
Lopez v. Frawner
Saiz v. State
Denham v. State
Stengel v. Roark
Johnson v. Hatch
State v. Ross
Garcia v. Wrigley
State v. Johnson
Martinez v. State
Chavez v. Hatch
Collins v. Garrett
Chavez v. Hatch
Pierce v. Nance
Guy v. N.M. Dept. of
Corrections
Trujillo v. Hickson
Marrah v. Swisstack
Keller v. Horton
Pittman v. N.M.
Corrections Dept.
Gonzales v. Sanchez
Cantone v. Franco
Wing v. Janecka
State v. Merhege
Camacho v. Sanchez
Benavidez v. State
Gutierrez v. State
Gutierrez v. Williams
Burdex v. Bravo
Chavez v. State
Roche v. Janecka
Contreras v. State
Utley v. State
12-501
12-501
12-501
12-501
12-501
12-501
12-501
12-501
01/05/16
01/05/16
12/30/15
12/29/15
12/29/15
12/28/15
12/21/15
12/18/15
COA 33,310
12-501
12-501
12-501
12-501
12-501
12-501
12-501
12-501
12-501
12-501
COA 33,966
12-501
12-501
12-501
12-501
COA 34,368
12-501
12-501
12/16/15
12/16/15
12/11/15
12/10/15
12/09/15
12/09/15
12/07/15
12/01/15
09/21/15
08/21/15
08/17/15
08/17/15
08/06/15
07/17/15
06/22/15
06/15/15
06/12/15
06/03/15
05/22/15
12-50104/30/15
12-501 04/23/15
12-501 01/26/15
12-501 12/11/14
12-501
12-501
12-501
12-501
COA 32,461
12-501
12-501
12-501
12-501
12-501
12-501
12-501
12-501
12-501
10/20/14
10/16/14
09/11/14
07/14/14
06/19/14
05/13/14
02/25/14
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Writs of Certiorari
Certiorari Granted but Not Yet Submitted to the Court:
(Parties preparing briefs) Date Writ Issued
No. 34,363 Pielhau v. State Farm
COA 31,899 11/15/13
No. 35,063 State v. Carroll
COA 32,909 01/26/15
No. 35,121 State v. Chakerian
COA 32,872 05/11/15
No. 35,116 State v. Martinez
COA 32,516 05/11/15
No. 35,279 Gila Resource v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
No. 35,289 NMAG v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
No. 35,290 Olson v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
No. 35,318 State v. Dunn
COA 34,273 08/07/15
No. 35,278 Smith v. Frawner
12-501 08/26/15
No. 35,427 State v.
Mercer-Smith
COA 31,941/28,294 08/26/15
No. 35,446 State Engineer v.
Diamond K Bar Ranch COA 34,103 08/26/15
No. 35,451 State v. Garcia
COA 33,249 08/26/15
No. 35,499 Romero v.
Ladlow Transit Services COA 33,032 09/25/15
No. 35,437 State v. Tafoya
COA 34,218 09/25/15
No. 35,515 Saenz v.
Ranack Constructors
COA 32,373 10/23/16
No. 35,614 State v. Chavez
COA 33,084 01/19/16
No. 35,609 Castro-Montanez v.
Milk-N-Atural
COA 34,772 01/19/16
No. 35,512 Phoenix Funding v.
Aurora Loan Services COA 33,211 01/19/16
No. 34,790 Venie v. Velasquez
COA 33,427 01/19/16
No. 35,680 State v. Reed
COA 33,426 02/05/16
No. 35,751 State v. Begay
COA 33,588 03/25/16
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 34,093 Cordova v. Cline
COA 30,546 01/15/14
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297 03/26/14
No. 34,798 State v. Maestas
COA 31,666 03/25/15
No. 34,630 State v. Ochoa
COA 31,243 04/13/15
No. 34,789 Tran v. Bennett
COA 32,677 04/13/15
No. 34,997 T.H. McElvain Oil & Gas v.
Benson
COA 32,666 08/24/15
No. 34,993 T.H. McElvain Oil & Gas v.
Benson
COA 32,666 08/24/15
No. 34,826 State v. Trammel
COA 31,097 08/26/15
No. 34,866 State v. Yazzie
COA 32,476 08/26/15
No. 35,035 State v. Stephenson
COA 31,273 10/15/15
No. 35,478 Morris v. Brandenburg COA 33,630 10/26/15
No. 35,248 AFSCME Council 18 v.
Bernalillo County Comm. COA 33,706 01/11/16
No. 35,255 State v. Tufts
COA 33,419 01/13/16
No. 35,183 State v. Tapia
COA 32,934 01/25/16
No. 35,101 Dalton v. Santander
COA 33,136 02/17/16
No. 35,198
No. 35,249
No. 35,302
No. 35,349
No. 35,148
No. 35,386
No. 35,286
No. 35,395
No. 35,130
No. 34,929
No. 34,830
No. 35,438
No. 35,426
No. 35,297
No. 35,214
Noice v. BNSF
COA 31,935
Kipnis v. Jusbasche
COA 33,821
Cahn v. Berryman
COA 33,087
Phillips v. N.M. Taxation and
Revenue Dept.
COA 33,586
El Castillo Retirement Residences v.
Martinez
COA 31,701
State v. Cordova
COA 32,820
Flores v. Herrera COA 32,693/33,413
State v. Bailey
COA 32,521
Progressive Ins. v. Vigil COA 32,171
Freeman v. Love
COA 32,542
State v. Le Mier
COA 33,493
Rodriguez v. Brand West
Dairy
COA 33,104/33,675
Rodriguez v. Brand West
Dairy
COA 33,675/33,104
Montano v. Frezza
COA 32,403
Montano v. Frezza
COA 32,403
02/17/16
02/29/16
02/29/16
03/14/16
03/16/16
03/28/16
03/30/16
03/30/16
03/30/16
04/13/16
04/25/16
04/27/16
04/27/16
08/15/16
08/15/16
Writ of Certiorari Quashed:
No. 33,930
State v. Rodriguez
Date Order Filed
COA 30,938 05/03/16
Petition for Writ of Certiorari Denied:
No. 35,869
No. 35,868
No. 35,865
No. 35,862
No. 35,860
No. 35,859
No. 35,851
No. 35,855
No. 35,854
No. 35,852
No. 35,848
No. 35,634
No. 35,612
No. 35,599
No. 35,845
No. 35,839
No. 35,838
No. 35,833
No. 35,832
No. 35,831
No. 35,830
No. 35,818
No. 35,712
No. 35,638
No. 34,777
Date Order Filed
Shah v. Devasthali
COA 34,096 05/19/16
State v. Hoffman
COA 34,414 05/19/16
UN.M. Board of Regents v.
Garcia
COA 34,167 05/19/16
Rodarte v.
Presbyterian Insurance COA 33,127 05/19/16
State v. Alvarado-Natera COA 34,944 05/16/16
Faya A. v. CYFD
COA 35,101 05/16/16
State v. Carmona
COA 35,851 05/11/16
State v. Salazar
COA 32,906 05/09/16
State v. James
COA 34,132 05/09/16
State v. Cunningham
COA 33,401 05/09/16
State v. Vallejos
COA 34,363 05/09/16
Montano v. State
12-501 05/09/16
Torrez v. Mulheron
12-501 05/09/16
Tafoya v. Stewart
12-501 05/09/16
Brotherton v. State
COA 35,039 05/03/16
State v. Linam
COA 34,940 05/03/16
State v. Nicholas G.
COA 34,838 05/03/16
Daigle v.
Eldorado Community COA 34,819 05/03/16
State v. Baxendale
COA 33,934 05/03/16
State v. Martinez
COA 33,181 05/03/16
Mesa Steel v. Dennis
COA 34,546 05/03/16
State v. Martinez
COA 35,038 05/03/16
State v. Nathan H.
COA 34,320 05/03/16
State v. Gutierrez
COA 33,019 05/03/16
State v. Dorais
COA 32,235 05/03/16
Bar Bulletin - August 24, 2016 - Volume 55, No. 34 11
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Effective August 12, 2016
Published Opinions
No. 34143 1st Jud Dist Rio Arriba CR-13-8, STATE v R MONTOYA (affirm)
8/8/2016
Unpublished Opinions
No. 34979 12th Jud Dist Otero JQ-12-06, CYFD v ROSCIO G (affirm)
8/8/2016
No. 34460 9th Jud Dist Curry CV-12-359, L GOLLIHEAIR v K FRANCHINI (affirm)
8/9/2016
No. 35326 2nd Jud Dist Bernalillo CR-13-2196, CR-14-3035, STATE v A ARAGON (affirm)
8/9/2016
No. 35490 4th Jud Dist San Miguel CV-15-139, J ARAGON v CITY OF LAS VEGAS (affirm)
8/9/2016
No. 34357 12th Jud Dist Lincoln CR-13-240, STATE v W MAKER (vacate)
8/10/2016
No. 35455 2nd Jud Dist Bernalillo LR-14-28, STATE v A BACA (affirm)
8/10/2016
No. 34442 11th Jud Dist San Juan CR-09-255, STATE v Q SHINDLEDECKER (reverse and remand)
8/11/2016
No. 35333 2nd Jud Dist Bernalillo JQ-12-88, CYFD v ZACHARIAH N (affirm)
8/11/2016
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
12
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 Name Change
As of July 12, 2016
Brooke Lynn Alexander
Acosta f/k/a Brooke Lynn
Acosta
Couture Law
2501 San Pedro Drive NE,
Suite 207
505-266-0125
brooke@couturelaw.com
of Change to Inactive
Status
Effective July 15, 2016:
Megan Elizabeth Jordi
Catholic Migration Services
191 Joralemon Street, 4th Floor
Brooklyn, NY 11201
718-236-3000
mjordi@catholicmigration.org
of Withdrawal
Effective August 1, 2016:
Violet A. P. Lui-Frank
PO Box 30477
Tucson, AZ 85751
Ariel Raab
PO Box 208
Taos, NM 87571
Howard Raab
PO Box 208
Taos, NM 87571
Kimball Udall
Sommer, Udall, Sutin,
Hardwick & Hyatt, PA
PO Box 1984
Santa Fe, NM 87504
of Change to Inactive
Status
Ryan T. Noble
8035 Eastern Avenue, Apt. T-1
Silver Spring, MD 20910
513-646-1260
noblert@gmail.com
Sarah Delaine Simchowitz
1320 E. Third Avenue, Apt. B
Durango, CO 81301
970-708-5121
sarahsimchowitz@gmail.com
of Admission
On July 26, 2016:
Isaac Ramon Ruiz-Carus
PO Box 320571
Tampa, FL 33679
813-514-3855
813-286-8820 (fax)
isaacruizcarus@yahoo.com
Todd H. Silberman
Mesilla Valley Transportation
3590 W. Picacho Avenue
Las Cruces, NM 88007
575-524-2835
toddsilberman@aol.com
Zachary Kyle Bradt
Phillips Murrah PC
101 N. Robinson Avenue,
13th Floor
Oklahoma City, OK 73102
405-235-4100
405-235-4133 (fax)
zkbradt@phillipsmurrah.com
On July 28, 2016:
Grace Allison
UNM School of Law
1505 Harvard Court NE
505-277-6559
505-266-2658 (fax)
graceallison@hotmail.com
Ann-Martha Andrews
Lewis Roca Rothgerber
Christie LLP
201 E. Washington Street,
Suite 1200
Phoenix, AZ 85004
602-262-5707
aandrews@lrrc.com
Gissou Azarnia
21 New Haven
Laguna Niguel, CA 92677
646-350-9617
gissoua@gmail.com
Laurie Pollard Blevins
1909 Roaring Fork Place NW
505-389-6184
lkp2739@gmail.com
Fiona M. Davidson
212 Harvard Drive SE, Unit A
704-840-2682
fiona.davidson@gmail.com
Zachary Stone Brady
Brady & Hamilton, LLP
1602 Thirteenth Street
Lubbock, TX 79401
806-771-1850
zach@bhlawgroup.com
James P. Eckels
Murr Siler & Accomazzo, PC
410 Seventeenth Street,
Suite 2400
Denver, CO 80202
303-534-2277
jeckels@msa.legal
Justin Michael Brandt
Bauman Loewe Witt
& Maxwell, PLLC
8765 E. Bell Road, Suite 210
Scottsdale, AZ 85260
480-502-4664
480-502-4774 (fax)
jbrandt@blwmlawfirm.com
Scott K. Brown
Lewis Roca Rothgerber
Christie LLP
201 E. Washington Street
Phoenix, AZ 85004
602-262-5321
602-734-3866 (fax)
sbrown@lrrc.com
Barbara J. Caraballo
6233 W. Behrend Drive #2049
Glendale, AZ 85308
915-253-5333
bcaraballo@me.com
Valerie Lynn Cox
6385 Shoup Road
Colorado Springs, CO 80908
719-337-7305
valerie@coxreconsulting.com
Margaret Jayne Crabb
11780 Swadley Drive
Lakewood, CO 80215
720-838-6847
mcrabb51@aol.com
Jim Darnell
Jim Darnell, PC
310 N. Mesa, Suite 212
El Paso, TX 79901
915-532-2442
915-532-4549 (fax)
jdarnell@jdarnell.com
Kristy A. Gale
PO Box 21022
Mesa, AZ 85277
602-751-9745
kristyagale@gmail.com
Nicholas Gibson
Office of the Second Judicial
District Attorney
520 Lomas Blvd. NW
505-222-1146
ngibson@da2nd.state.nm.us
Laurie Joyce Hamilton
5836 Reinhardt Drive
Fairway, KS 66205
913-485-2002
lauriejh@aol.com
Amara M. Hayden
3710 S. Susan Street, Suite 210
Santa Ana, CA 92704
520-490-2787
ahaydenalaw@gmail.com
Peter Haynes
333 Lomas Blvd. NW, Suite 270
505-348-2306
peter_haynes@nmcourt.fed.us
Joseph Michael Hoffman
513 South 93rd Street
Mesa, AZ 85208
480-287-0081
hoffman-joseph@hotmail.com
Kimberly Ann Jackson
1928 Denver West Court #2531
Golden, CO 80401
719-229-6827
kjackson11@law.du.edu
13
W. Shane Jennings
Law Office of
W. Shane Jennings
PO Box 13808
506 S. Main Street,
Suite 700 (88001)
512-955-1113
shane@wshanejennings.com
Donald Hamilton Kidd
Perdue & Kidd
510 Bering Drive, Suite 550
Houston, TX 77057
713-520-2500
713-520-2525 (fax)
dkidd@perdueandkidd.com
Molly Ann Manning
Mullin Hoard & Brown, LLP
PO Box 2585
1500 Broadway, Suite 700
(79401)
Lubbock, TX 79408
806-765-7491
806-765-0553 (fax)
mmanning@mhba.com
Elizabeth A. McGown
3 Cresta del Angel
Santa Fe, NM 87505
404-434-8261
emcgown@gmail.com
Timothy Charles McHugh
One N. Dale Mabry Hwy.,
Suite 800
Tampa, FL 33609
800-255-5070
timothy@wilkesmchugh.com
Mary A. McQueeney
N.M. Children, Youth
& Families Department
4 Grand Avenue Plaza
Roswell, NM 88201
575-840-8212
mary.mcqueeney@state.nm.us
Dated August 15, 2016
of Address and/or
Telephone Changes
Elizabeth Ann Alongi
Jorden Hiser & Joy, PLC
5080 N. 40th Street, Suite 245
Phoenix, AZ 85018
480-505-3900
480-505-3901 (fax)
ealongi@jhjlawyers.com
14
Patrick Brian McRorie
Lathrop Gage LLP
950 Seventeenth Street,
Suite 2400
Denver, CO 80202
720-931-3226
pmcrorie@lathropgage.com
Katy Pier Moore
Santoyo Moore Wehmeyer PC
1020 N.E. Loop 410, Suite 320
San Antonio, TX 78209
210-920-9476
210-920-9490 (fax)
kmoore@smwenergylaw.com
Robert L. Negrin
Aldridge Pite, LLP
550 Westcott Street, Suite 560
Houston, TX 77007
713-293-3650
858-412-2798 (fax)
rnegrin@aldridgepite.com
Tiffany A. Owens
8300 Wyoming Blvd. NE,
Apt. 3114
801-361-8351
siddoway2@gmail.com
Keith E. Patton
4919 Blossom Street
Houston, TX 77007
214-402-3331
keithpattonlaw@gmail.com
Michael David Post
Thrush Law Group
4011 E. Broadway, Suite 101
Tucson, AZ 85711
520-327-3442
520-327-0125 (fax)
mpost@thrushlawgroup.com
Amy B. Bailey
Cordell & Cordell, PC
6565 Americas Parkway NE
505-563-5591
505-214-5928 (fax)
abbailey@cordelllaw.com
Renae Resch
Husch Blackwell LLP
1700 Lincoln Street, Suite 4700
Denver, CO 80203
303-749-7289
303-749-7272 (fax)
renae.resch@huschblackwell.
com
Paul Philip Santoyo
Santoyo Moore Wehmeyer PC
1020 N.E. Loop 410, Suite 320
San Antonio, TX 78209
210-920-9485
210-920-9490 (fax)
psantoyo@smwenergylaw.com
Rachel Marie Schafer
408 Mission Court
St. Louis, MO 63130
505-620-9908
rmschafer1@gmail.com
Jeffrey Anton Shepard
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17
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Opinion Number: 2016-NMSC-017
No. S-1-SC-35248 (filed May 23, 2016)
AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES,
COUNCIL 18, AFL-CIO, LOCALS 1461, 2260 and 2499,
Plaintiffs-Petitioners,
v.
BOARD OF COUNTY COMMISSIONERS OF BERNALILLO COUNTY,
Defendant-Respondent.
ORIGINAL PROCEEDING ON CERTIORARI
VALERIE A. HULING, District Judge
SHANE C. YOUTZ
STEPHEN CURTICE
JAMES A. MONTALBANO
YOUTZ & VALDEZ, P.C.
Albuquerque, New Mexico
for Petitioners
Opinion
Judith K. Nakamura, Justice
{1}Petitioners, American Federation of
State, County and Municipal Employees, Council 18, AFL-CIO, Locals 1461,
2260 and 2499 (AFSCME), brought a
declaratory-judgment action challenging
the grandfather status of Respondent’s,
Board of County Commissioners of Bernalillo County (County Commission),
local labor relations board. The merits of
AFSCME’s claims were considered and
rejected by both the district court and
the Court of Appeals. We focus on the
statutory jurisdictional prerequisites of
New Mexico’s Declaratory Judgment Act,
NMSA 1978, §§ 44-6-1 to -15 (1975),
and hold that AFSCME failed to satisfy
those prerequisites. AFSCME’s claims are
not ripe, and AFSCME failed to assert an
injury-in-fact. Accordingly, the district
court lacked jurisdiction to adjudicate
AFSCME’s declaratory-judgment action.
We remand to the district court to dismiss
for lack of jurisdiction. As the Court of Appeals also lacked jurisdiction, its opinion
is vacated.
I.BACKGROUND
{2}AFSCME is the exclusive bargaining
representative under the Public Employee
Bargaining Act (PEBA), NMSA 1978, §§
18
RANDY M. AUTIO
MICHAEL I. GARCIA
OFFICE OF THE COUNTY ATTORNEY
for Respondent
10-7E-1 to -26 (2003, as amended through
2005), for unionized public employees in
Bernalillo County. The County Commission is the public employer of unionized
public employees in Bernalillo County
under the PEBA.
{3}In 1975, the County Commission
enacted Labor-Management Relations
Ordinances (LMROs) for the purpose
of allowing “county employees to organize and bargain collectively with the
county government.” Bernalillo County,
N.M., Ordinances, ch.2, art. III, div.5,
§ 2-201 (1975). By these ordinances,
the County Commission established a
labor relations board (the County Labor
Board) to adjudicate workplace disputes
between the County Commission and
its employees. See Bernalillo County,
§ 2-210(f) (1975) (stating that “[a]ny
allegation that a prohibited practice has
been committed will be submitted to the
[County Labor Board]” and describing
the procedures the County Labor Board
shall follow); Bernalillo County, N.M.,
Ordinances, ch.2, art. III, div.5, § 2-214
(1975) (establishing and defining the
function and membership of the County
Labor Board as well as the process for
appointment of its members and their
term lengths).
{4}The County Labor Board functions
as the local equivalent of the Public Employee Labor Relations Board (PELRB)
and derives legal status from Section
10-7E-26(A), a provision of the PEBA this
Court has previously referred to as the
“grandfather clause.” See Regents of Univ.
of N.M. v. N.M. Fed’n of Teachers, 1998NMSC-020, ¶ 8, 125 N.M. 401, 962 P.2d
1236. Section 10-7E-26(A) is “a special
provision for those public employers that,
prior to October 1, 1991, had already voluntarily adopted a collective-bargaining
system and had successfully negotiated
collective-bargaining agreements with
their employees.” Regents of Univ. of N.M.,
1998-NMSC-020, ¶ 8. The provision permits “those public employers to continue
to operate under their pre-existing provisions and procedures.” Id.
{5} In July of 2013, AFSCME filed a complaint for declaratory judgment and permanent injunctive relief in the Second Judicial District Court under New Mexico’s
Declaratory Judgment Act. At the heart
of this complaint were two allegations:
first, AFSCME contended that the County
Commission had engaged in a prohibited
practice by allegedly refusing to engage
in labor negotiations in April and May of
2013 even though a collective bargaining
agreement between the parties purportedly required the County Commission to
do so. Second, AFSCME alleged that four
employees at the Bernalillo County Juvenile Detention Center had been wrongly
designated as supervisors, and that these
employees were entitled to be accreted into
the bargaining unit.
{6}AFSCME acknowledged that these
claims would typically be heard by the
County Labor Board; however, AFSCME
argued that it should not be required to
proceed in front of that entity but should
be permitted to file its claims with the
PELRB because the LMROs deprive it
and its members of due process. AFSCME
offered the following argument to support this contention. While the LMROs
designate the neutral County Labor Board
as the initial adjudicator of prohibitedpractice complaints, Bernalillo County,
Section 2-211(a) (1975) of the LMROs
designates the County Commission as the
final arbiter of any “violations” identified
by the County Labor Board, and states that
the County Commission is not bound by
the County Labor Board’s findings and
Advance Opinions
conclusions but is empowered to engage
in independent review of the evidence and
arguments. Id. According to AFSCME,
the County Commission is self-evidently
biased because it is the employer and is,
therefore, necessarily opposed to employee
interests. AFSCME claims that requiring
it to proceed before a biased adjudicator
violates its and its members’ due process
rights. Accordingly, AFSCME concludes
that the County Labor Board is not entitled to grandfather status under Section
10-7E-26(A). In its answer to AFSCME’s
complaint, the County Commission
denied having engaged in any unlawful
conduct and claimed, as an affirmative
defense, that AFSCME’s action is not ripe
and, therefore, should be dismissed.
{7} The parties stipulated that the district
court could decide AFSCME’s declaratoryjudgment action on briefs only, and a
briefing schedule was issued. AFSCME’s
brief restated and clarified the arguments
laid out in its complaint. The County
Commission’s response brief focused on
what it described as AFSCME’s central
error: AFSCME failed to provide any
evidence to support the contention that
the County Commission is biased, and,
therefore, AFSCME’s contention that the
LMROs are not entitled to grandfather
status fails. The County Commission argued that, in New Mexico, it is presumed
that public officials properly perform their
duties, see City of Albuquerque v. Montoya,
2012-NMSC-007, ¶ 20, 274 P.3d 108, and
AFSCME wrongly presumes the opposite.
AFSCME’s claims also fail to acknowledge,
the County Commission noted, that the
County Commission has a significant
interest in ensuring harmonious relations
with its employees. Finally, the County
Commission argued that AFSCME failed
to identify any harm resulting from the
alleged bias and, for this reason, contended
that AFSCME’s claims were not ripe for
review.
{8} The district court entered an opinion
and order in which it addressed the merits
of the parties’ dispute, rejected AFSCME’s
argument that the County Labor Board
was not entitled to grandfather status,
and dismissed AFSCME’s complaint. The
district court characterized AFSCME’s
claim that the County Commission was
self-evidently biased against employees
as unsupported by facts or law. The Court
of Appeals also reached the merits of the
dispute and affirmed. Am. Fed’n of State
v. Bd. of Cty. Comm’rs of Bernalillo Cty.,
2015-NMCA-070, ¶¶ 14-15, 352 P.3d
682, cert. granted, 2015-NMCERT-006
(No. 35,248, June 19, 2015). In attempting to articulate what precisely AFSCME
found objectionable about the LMROs, the
Court of Appeals was required to carefully
parse AFSCME’s arguments and engage in
guesswork. Id. ¶¶ 7-8. The lower courts’
reactions to AFSCME’s arguments are
entirely understandable. As we clarify in
the discussion below, AFSCME’s claims
are speculative and contingent.
{9}We granted certiorari, exercising our
jurisdiction under Article VI, Section 3 of
the New Mexico Constitution and NMSA
1978, Section 34-5-14(B) (1972). After
careful review of the briefs and consideration of the parties’ presentations at oral
argument, it is clear that the operative
question in this case is whether AFSCME
satisfied statutory jurisdictional prerequisites to bring suit under New Mexico’s
Declaratory Judgment Act.
II.DISCUSSION
A. Standard of Review
{10} The standard of review for jurisdictional issues is de novo. Smith v. City of
Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M.
786, 171 P.3d 300.
B. Declaratory-Judgment Actions
{11} The Declaratory Judgment Act (the
Act), §§ 44-6-1 to -15, grants jurisdiction to the district courts to determine
questions of the construction or validity
of local laws and municipal ordinances.
Smith, 2007-NMSC-055, ¶ 14. Section
44-6-4 states, in pertinent part, that “[a]
ny person . . . whose rights, status or other
legal relations are affected by a statute,
[or] municipal ordinance . . . may have
determined any question of construction
or validity arising under the . . . statute,
[or] ordinance . . . and obtain a declaration
of rights, status or other legal relations
thereunder.” Given the specific nature of
AFSCME’s claim—that the LMROs violate
AFSCME’s due process rights and, thus,
the LMROs are not entitled to grandfather
status—it appears Section 44-6-4 was the
provision under which AFSCME should
have proceeded.
{12} In its complaint, AFSCME relied
on another provision of the Act, Section
44-6-13. This provision deals with the
circumstances under which “the State
of New Mexico, or any official thereof,
may be sued and declaratory judgment
entered . . . ” Id. We have addressed this
provision in the context of waiver of state
sovereign immunity and concluded that
the provision “permits parties to sue the
state when the state’s consent to be sued
otherwise exists.” Gill v. Pub. Emps. Ret.
Bd., 2004-NMSC-016, ¶ 11, 135 N.M.
472, 90 P.3d 491. It is unclear whether
Section 44-6-13 has any application here.
It is unnecessary, however, to resolve this
complication. AFSCME was required to
fulfill certain jurisdictional prerequisites
to proceed under any provision of the Act.
{13} In 1935, the Legislature enacted
New Mexico’s first declaratory-judgment
act, which was patterned on the federal act
and provided that “[i]n cases of actual controversy, the courts of record of the State
of New Mexico shall have power, upon
petition, declaration complaint, or other
appropriate pleadings, to declare rights
and other legal relations of any interested
party petitioning for such declaration . . . .”
1935 N.M. Laws, ch. 143, § 1. Shortly
thereafter, in Taos County Board of Education v. Sedillo, this Court held that “under
section 1 of our [declaratory judgment]
act an actual controversy must exist to
confer jurisdiction.” 1940-NMSC-026, ¶
22, 44 N.M. 300, 101 P.2d 1027. As early
as Sedillo, this Court already considered it
well-settled that a justiciable controversy
is a necessary precondition to invoke a
court’s jurisdiction to decide a declaratoryjudgment action. See id. ¶¶ 22-26. The
current version of the Act is significantly
similar to the first version. It grants the
district courts “power to declare rights,
status, and other legal relations” in “cases
of actual controversy.” Section 44-6-2; see
also New Energy Econ., Inc. v. Shoobridge,
2010-NMSC-049, ¶ 17, 149 N.M. 42, 243
P.3d 746 (“The [Act] itself requires the
presence of an ‘actual controversy’ before
a district court can assume jurisdiction in
a declaratory judgment action.” (quoting
§ 44-6-2)).
{14} Article VI, Section 1 of the New
Mexico Constitution vests the “judicial
power” in the courts “as may be established
by law . . . .” The Legislature may establish
a right and predicate a court’s power of
review on the fact that suit is brought
by one of a particular class of plaintiffs
or petitioners. If a statute creates a right
and provides that only a specific class of
persons may petition for judicial review of
an alleged violation, then the courts lack
the jurisdiction to adjudicate that alleged
violation when the petition is brought by
a person outside of that class.
{15} From the foregoing, we reach the following conclusions. Under the Act, courts
in New Mexico have jurisdiction to adjudicate and declare rights and legal relations
only in cases of actual controversy. A case
19
Advance Opinions
of actual controversy exists only where a
plaintiff satisfies justiciability requirements.
If a party fails to meet these requirements,
then, under the Act, the district court lacks
jurisdiction to decide the merits of the action.
{16} Issues of justiciability were raised
in the proceedings below. The County
Commission asserted ripeness as an affirmative defense in its answer to AFSCME’s
complaint. It raised the issue again in its
response in opposition to AFSCME’s brief
in support of its complaint. The Commission argued in its answer brief in the proceedings before this Court that AFSCME
failed to show that it suffered any harm.
And at oral argument, the Commission
argued that AFSCME’s claims were nonjusticiable. Regardless, we may consider
the justiciability of AFSCME’s claims sua
sponte. It is well settled that “[j]urisdiction
of the subject matter cannot be conferred
by consent of the parties, much less waived
by them.” State ex rel. Overton v. N.M.
State Tax Comm’n, 1969-NMSC-140, ¶ 8,
81 N.M. 28, 462 P.2d 613. “If sensed by the
court, even though not raised by the parties, the question of jurisdiction compels
an answer.” Id. Cf. Gunaji v. Macias, 2001NMSC-028, ¶ 20, 130 N.M. 734, 31 P.3d
1008 (observing that lack of standing “is a
potential jurisdictional defect, which may
not be waived and may be raised at any
stage in the proceedings, even sua sponte
by the appellate court” (internal quotation
marks and citations omitted)).
{17} We are here concerned with two
requirements of justiciability: ripeness and
the injury-in-fact component of standing. An actual controversy is not present
unless the issue raised by the litigant is
ripe for judicial determination, Sanchez
v. City of Santa Fe, 1971-NMSC-012, ¶ 7,
82 N.M. 322, 481 P.2d 401, and the litigant
has standing. State ex rel. Overton, 1969NMSC-140, ¶ 16. One essential component of standing is injury-in-fact. ACLU of
N.M. v. City of Albuquerque, 2008-NMSC045, ¶ 19, 144 N.M. 471, 188 P.3d 1222. For
the reasons discussed below, we hold that
AFSCME’s declaratory-judgment action is
not ripe for review and AFSCME has not
asserted an injury-in-fact.
1.Ripeness
{18} The purpose of the ripeness requirement “is and always has been to conserve
judicial machinery for problems which
are real and present or imminent, not to
squander it on abstract or hypothetical
or remote problems.” N.M. Indus. Energy
Consumers v. N.M. Pub. Serv. Comm’n,
20
1991-NMSC-018, ¶ 25, 111 N.M. 622, 808
P.2d 592 (internal quotation marks and
citation omitted). The core policy concerns animating the ripeness doctrine are
avoidance of unnecessary constitutional
determinations and the establishment
and maintenance of proper relationships
between the judiciary and other branches
of government. 13B Wright, Miller &
Cooper, Federal Practice and Procedure §
3532.1 at 394 (3d ed. 2008). See also ACLU
of N.M., 2008-NMSC-045, ¶ 10 (observing that analysis of justiciability principles
in New Mexico have long been guided
by federal practice). The importance of
these concerns cannot be overemphasized.
As one leading treatise correctly notes,
“courts should not render decisions absent
a genuine need to resolve a real dispute.
Unnecessary decisions dissipate judicial
energies better conserved for litigants
who have a real need of official assistance.”
Wright, Miller & Cooper, supra, § 3532.1
at 372-73 (footnote omitted).
{19} Ripeness analysis involves a two
pronged inquiry. We “evaluate both the
fitness for the issues for judicial decision
and the hardship to the parties of withholding court consideration.” N.M. Indus.
Energy Consumers, 1991-NMSC-018, ¶ 25
(quoting Abbott Labs. v. Gardner, 387 U.S.
136, 149 (1967), abrogated by Califano v.
Sanders, 430 U.S. 99 (1977)). When, as in
the present case, constitutional questions
are at issue, courts are particularly vigilant
to ensure that the matter is ripe. 15 Moore’s
Federal Practice § 101.79 at 101-340 (3d
ed. 2015); see also City of Las Cruces v. El
Paso Elec. Co., 1998-NMSC-006, ¶ 21, 124
N.M. 640, 954 P.2d 72 (“[I]t is an enduring
principle of constitutional jurisprudence
that courts will avoid deciding constitutional questions unless required to do so.”
(internal quotation marks and citation
omitted)). For the reasons that follow,
AFSCME’s claims are not fit, and it will
suffer little hardship if we dismiss.
{20} Fitness is concerned with “whether
the claim involves uncertain and contingent events that may not occur as anticipated or may not occur at all.” 15 Moore’s
Federal Practice § 101.76[1][a] at 101312.2; accord Wright, Miller & Cooper,
supra, § 3532.2 at 459 (“Many cases deny
ripeness on the straight-forward ground
that the anticipated events and injury are
simply too remote and uncertain to justify
present adjudication.”). We have previously observed that the “mere possibility
or even probability that a person may be
adversely affected in the future by official
acts” is insufficient to establish ripeness.
New Energy Econ., 2010-NMSC-049, ¶
18 (internal quotation marks and citation
omitted). This is because:
“[i]f the facts are uncertain and
the court is being asked to make
a legal ruling based on the possibility that certain facts will be
found to exist at some point in
the future, then a decision would
constitute nothing more than
an advisory opinion based on a
hypothetical scenario.”
15 Moore’s Federal Practice § 101.75 at
101-312.1.
{21} Decisions of administrative entities
are fit for review only when the agency’s
decision is final. See N.M. Indus. Energy
Consumers, 1991-NMSC-018, ¶ 26 (indicating that the ultimate question, when
considering ripeness in the administrative
context, “is whether agency action is sufficiently final or definitive so that there
is no judicial interest in awaiting a more
concrete formulation of the issues”). This
proposition serves to prevent “judicial
interference until an administrative decision has been formalized and finalized
and its effects felt in a concrete way by
the parties.” 15 Moore’s Federal Practice §
101.76[1][c] at 101-317 to 101-318. Moreover, the proposition serves an important
role in preserving separation of powers.
See New Energy Econ., 2010-NMSC-049,
¶ 19 (“Judicial action that disrupts the
administrative process before it has run its
course intrudes on the power of another
branch of government.”).
{22} AFSCME’s injury is based on two
underlying claims: (1) the County Commission refused to negotiate and (2) it is
entitled to accrete into the bargaining unit
four employees at the Bernalillo County
Juvenile Detention Center. As noted, AFSCME asserts that it need not file these
claims with the County Labor Board
because the Board is not entitled to grandfather status. According to AFSCME, the
Board is not entitled to this status because
its decisions are subject to a biased review
by the County Commission which would
deprive AFSCME and its members of due
process.
{23} With respect to the allegation that
the County Commission refused to negotiate, AFSCME’s due-process injury would
materialize only if the County Labor Board
found that refusal to bargain was in fact a
prohibited practice. If the County Labor
Board makes no such finding, the County
Commission has no right of review. See
Advance Opinions
Bernalillo County, N.M., Ordinances,
ch. 2, art. III, div.5, § 2-211(a) (stating
that the County Commission shall exercise independent review only where the
County Labor Board finds a party guilty
of a violation). Where the Commission has
no right to review, there can be no opportunity for the Commission to exercise an
alleged bias and deprive AFSCME and its
members of due process. And even if the
County Labor Board found the County
Commission’s refusal to negotiate to be a
prohibited practice, AFSCME’s injury still
would only actualize if the Commission
reversed the Board’s findings. Only then
would AFSCME allege a non-hypothetical
injury.
{24} With regard to the accretion issue,
it is not clear whether the County Commission is even adverse to AFSCME’s
request to accrete the employees. According to AFSCME, these employees were
wrongly designated as supervisors when
they are not. At oral argument, AFSCME
contended that the County Commission
would necessarily oppose the accretion
of these employees in light of the fact that
the employees would, after accretion, be
entitled to additional rights and benefits.
But this is speculation. Does the County
Commission oppose AFSCME’s argument
that the employees were wrongly designated? Will the County Labor Board agree
with AFSCME about the errant designation of these employees? If the Board does
agree, will it permit accretion and will it
find a prohibited practice or other violation as defined in Bernalillo County, N.M.,
Ordinances, ch.2, art. III, div.5, § 2-211(a)
such that the Board shall request the Commission to enter an order? Will the County
Commission ignore the Board’s finding,
engage in bias, and then enter an order
contrary to the Board’s order? We do not
know the answer to any of these questions.
AFSCME asks us to speculate.
{25} Additionally, the LMROs and the
proceedings they establish function, for
all purposes and effect, as administrative
proceedings. AFSCME’s declaratoryjudgment action involved the district court
in those proceedings well in advance of
any final adjudication at the county level.
AFSCME does not contest the neutrality
or legitimacy of the County Labor Board;
yet, even that entity was not given the opportunity to rule on the refusal-to-bargain
and accretion issues. In this instance, there
was no county-level adjudication at all.
No concrete formulation of the issue was
permitted to develop.
{26} If any doubt existed that AFSCME’s
claims were not fit, those doubts dissipated
at oral argument. There, AFSCME conceded that allowing the County Labor Board
an opportunity to rule on the refusal to negotiate and accretion issues would help determine whether a “real dispute” exists in
this case. AFSCME further conceded that
there has been no single instance, in the
forty-plus years the LMROs have existed,
where the County Commission overruled
the County Labor Board’s determination
regarding a prohibited-practice violation.
AFSCME attributed this positive state of
affairs to the parties’ “good relationship.”
{27} Based on the foregoing, we conclude
that AFSCME’s alleged injury is speculative and contingent. Accordingly, under
the Declaratory Judgment Act, it is not fit
for review. See Rio Grande Kennel Club v.
City of Albuquerque, 2008-NMCA-093, ¶
24, 144 N.M. 636, 190 P.3d 1131 (rejecting
as premature, under ripeness principles, a
facial claim against a regulation that the
city had yet to enforce); 15 Moore’s Federal Practice § 101.80[4] at 101-345 (“The
existence of a contingency is sufficient to
elicit a finding that the issue is not yet ripe
for review.”).
{28} The second step in the ripeness
analysis is whether, and to what extent,
the parties will endure hardship if a decision is withheld. See N.M. Indus. Energy
Consumers, 1991-NMSC-018, ¶ 25. “The
hallmark of cognizable hardship is usually
direct and immediate harm.” 15 Moore’s
Federal Practice § 101.76[2] at 101-331;
accord Morgan v. McCotter, 365 F.3d 882,
891 (10th Cir. 2004) (“[T]he hardship inquiry may be answered by asking whether
the challenged action creates a direct
and immediate dilemma for the parties.”
(internal quotation marks and citation
omitted)). “In assessing this possibility of
hardship, we ask whether the challenged
action creates a direct and immediate
dilemma for the parties. The mere possibility of future injury, unless it is the
cause of some present detriment, does not
constitute hardship.” N.Y. Civil Liberties
Union v. Grandeau, 528 F.3d 122, 134 (2d
Cir. 2008) (internal quotation marks and
citations omitted).
{29} The hardship AFSCME faces here is
speculative. As noted, AFSCME conceded
at oral argument that further adjudication
at the county level will help clarify whether
a real dispute exists in this case, and also
conceded that, if the type of biased administrative adjudication it fears does in fact
manifest, then it can return to court and
seek review of that decision. Accordingly,
AFSCME will not be imminently injured
by dismissal. Cf. Morgan, 365 F.3d at 891
(“[P]ostponing decision on this case until
[p]laintiff has suffered some concrete harm
cannot itself constitute an independent
harm to [p]laintiff.”).
{30} AFSCME’s claims are not fit for review, and declining to review them works
no hardship on AFSCME. Accordingly,
AFSCME’s claims are not ripe.
2. Injury-In-Fact
{31} Under New Mexico’s Declaratory
Judgment Act, standing—like ripeness—is
a jurisdictional prerequisite. State ex rel.
Overton, 1969-NMSC-140, ¶ 16. “The
standing question ‘bears close affinity to
questions of ripeness—whether the harm
asserted has matured sufficiently to warrant judicial intervention.’” Miss. State
Democratic Party v. Barbour, 529 F.3d 538,
544-45 (5th Cir. 2008) (quoting Warth v.
Seldin, 422 U.S. 490, 499 n.10 (1975)). “In
some cases, the issues of standing and ripeness will completely overlap.” 15 Moore’s
Federal Practice § 101.71 at 101-308 to
101-309. This is particularly true “in cases
involving pre-enforcement review, the
standing and ripeness inquiries may tend
to converge. This is because claims for preenforcement review involve the possibility
of wholly prospective future injury, not
a prayer for relief from damages already
sustained.” Elend v. Basham, 471 F.3d 1199,
1205 (11th Cir. 2006).
{32} To obtain standing in New Mexico,
litigants must allege an injury-in-fact, i.e.,
that “they are directly injured as a result of
the action they seek to challenge” in court.
See ACLU of N.M., 2008-NMSC-045, ¶ 1;
N.M. Right to Choose/NARAL v. Johnson,
1999-NMSC-005, ¶ 12, 126 N.M. 788, 975
P.2d 841. The litigant must show “that he is
imminently threatened with injury, or, put
another way, that he is faced with a real risk
of future injury, as a result of the challenged
action or statute.” ACLU of N.M., 2008NMSC-045, ¶ 11 (internal quotation marks
and citations omitted). Requiring the party
bringing suit to show a concrete injury or
threat of injury “serves well-established goals
of sound judicial policy.” Id. ¶ 19. This requirement prevents our courts from making
unnecessary constitutional determinations
and ensures that the judiciary maintains a
proper relationship with other branches of
government. Id. Hypothetical possibilities
of injury “will not suffice to establish the
threat of direct injury required for standing.”
Id. ¶ 29; see also 15 Moore’s Federal Practice
§ 101.40[4][b][i] at 101-60 (“An injury that
21
Advance Opinions
is merely conjectural, speculative, or hypothetical will not satisfy the injury-in-fact
component of standing.”).
{33} For reasons already stated, AFSCME
asserts only the possibility of a hypothetical injury and, therefore, has not established an injury-in-fact.
III.CONCLUSION
{34} AFSCME did not establish the existence of an “actual controversy.” Its claims
fail to satisfy the justiciability requirements
of ripeness and the injury-in-fact component of standing. Therefore, the district
court did not possess jurisdiction over
AFSCME’s declaratory-judgment action.
As the district court did not possess jurisdiction, its decision, as well as the decision
of the Court of Appeals, must be vacated.
We remand this matter to the district court
for dismissal for lack of jurisdiction.
{35} IT IS SO ORDERED.
JUDITH K. NAKAMURA, Justice
WE CONCUR:
CHARLES W. DANIELS, Chief Justice
BARBARA J. VIGIL, Justice
EDWARD L. CHÁVEZ and
PETRA JIMENEZ MAES, Justices,
concurring in part and dissenting in part
CHÁVEZ, Justice
(concurring in part, dissenting in part).
{36} I respectfully concur in part and
dissent in part with the majority opinion.
I agree with the majority opinion that the
AFSCME complaint for declaratory judgment is not ripe because AFSCME did not
file with the County Labor Board. Maj. op.
¶ 23. After all, if the County Labor Board
does not find a prohibited practice under
Bernalillo County, N.M., Ordinances Chapter 2, Article III, Section 2-210(a) (1975),
AFSCME will not have to argue its case
before the Bernalillo County Commission
(Commission).1 However, if the County Labor Board finds that either the Commission
or AFSCME are guilty of a prohibited practice, the County Labor Board “shall request
that the county commission enter an order
against the party guilty of the violation.”
Bernalillo Cty., N.M., Ordinances ch. 2, art.
III, § 2-211(a) (1975). The majority holds
that under such circumstances “AFSCME’s
injury still would only actualize if the Commission reversed the Board’s findings.” Maj.
op. ¶ 23. I cannot agree with this portion
of the majority opinion. An actual controversy regarding the significant due process
concerns with the procedures in the LMRO
would exist once the County Labor Board
found a prohibited practice violation.
{37} The Commission is a party to the
collective bargaining agreement. If the
County Labor Board finds the Commission guilty of a prohibited practice,
the Commission independently decides
whether it was guilty of such a violation.
If the County Labor Board finds AFSCME
guilty of a prohibited practice violation,
the Commission independently decides
whether AFSCME was guilty of such a
violation. When a party to a contract gets
to decide whether either it or the other
party breached the contract, this in and
of itself raises significant due process concerns. The United States Supreme Court
recognized long ago that
[a] fair trial in a fair tribunal is
a basic requirement of due process. Fairness of course requires
an absence of actual bias in the
trial of cases. But our system of
law has always endeavored to
prevent even the probability of
unfairness. To this end no man
can be a judge in his own case
and no man is permitted to try
cases where he has an interest in
the outcome. That interest cannot
be defined with precision.
In re Murchison, 349 U.S. 133, 136 (1955).
How can a party to a contract who adjudicates whether either it or the other party
breached the agreement not have an interest in the outcome? The Commission is the
adjudicator in its own case.
{38} Especially in this case, where the
Commission independently makes its
decision–the Commission’s review is not
tethered to any standards of review. The
Commission gives the evidence the weight
it chooses. The Commission does not give
any deference to the County Labor Board.
The Commission is not limited to deciding whether the County Labor Board was
arbitrary. In addition, once the Commission makes its decision, it “may petition
the appropriate district court to enforce
its decision on the issue.” Bernalillo Cty.,
N.M., Ordinances ch. 2, art. III, § 2-211(a).
The ordinance does not address any appeal
rights that AFSCME might have.
{39} The ordinances under review are
one-sided and is unlike any other Bernalillo
County ordinances affecting employment
relations. For example, a hearing officer is
the final arbiter regarding employee discipline matters. See Bernalillo Cty., N.M.,
Ordinances ch. 2, art. III, § 2-99(a) (1998).
The hearing officer’s decision is appealable
to “district court pursuant to the provisions
of the Uniform Arbitration Act, NMSA
1978 § 44-7-22 et. seq.” Section 2-99(i).
Code of Conduct Review Board decisions
are also appealed directly to the district
court. Bernalillo Cty., N.M., Ordinances
ch. 2, art. III, § 2-134 (2012) (“Any decision
of the review board finding a violation of
this code, with respect to an elected official,
candidate or volunteer may be appealed to
the Second Judicial District Court. Any
decision regarding an employee shall be
covered by the terms of the employment
rules and regulations or collective bargaining agreement, as applicable.”).
{40} For the foregoing reasons, I concur
in part and dissent in part.
EDWARD L. CHÁVEZ, Justice
I CONCUR:
PETRA JIMENEZ MAES, Justice
1AFSCME should be able to appeal directly to district court under Rule 1-075 NMRA. See Mills v. N.M. Bd. of Psychologist Exam’rs,
1997-NMSC-028, ¶ 10, 123 N.M. 421, 941 P.2d 502.
22
Advance Opinions
No. S-1-SC-34873 (filed May 19, 2016)
ESTATE OF ALICE C. BRICE, by and through Personal Representative
TRACY A., and Minors, EMILY A., and HANNAH A.,
by and through their parent and next friend, TRACY A.,
Plaintiff-Appellant,
v.
TOYOTA MOTOR CORPORATION, a Japanese corporation;
TOYOTA MOTOR SALES, U.S.A., INC., a California corporation;
TOYOTA MOTOR ENGINEERING & MANUFACTURING NORTH AMERICA, INC.,
a Kentucky corporation; TOYOTA MOTOR NORTH AMERICA, INC.,
a California corporation; TOYOTA MOTOR MANUFACTURING,
CALIFORNIA, INC., a California corporation;
TOYOTA TECHNICAL CENTER U.S.A., a Japanese corporation;
TOYOTA TECHNICAL CENTER JAPAN, a Japanese corporation;
LARRY H. MILLER CORPORATION NEW MEXICO, d/b/a AMERICAN TOYOTA;
NEW MEXICO STATE HIGHWAY DEPARTMENT;
and DOES 1 through 10, inclusive, and each of them,
Defendants-Appellees.
CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS
Sarah M. Singleton, District Judge
STEVEN LEE TUCKER
TUCKER LAW FIRM, P.C.
Santa Fe, New Mexico
LISA K. CURTIS
AMALIA J. SKOGEN LUCERO
CURTIS & LUCERO
Opinion
Petra Jimenez Maes, Justice
{1}In this certified appeal we consider
whether the doctrine of fraudulent concealment applies to actions under the
Wrongful Death Act (WDA), NMSA 1978,
Sections 41-2-1 to -4 (1882, as amended
through 2001). This is an issue of first
impression in New Mexico. We hold that
the doctrine of fraudulent concealment
may apply to toll the statutory limitations
period for a wrongful death claim if a
defendant has fraudulently concealed a
cause of action, thereby preventing that
defendant from claiming the statute of
PAUL KOMYATTE
THE KOMYATTE LAW FIRM
Golden, Colorado
for Plaintiff-Appellant
EDWARD R. RICCO
JEFFREY M. CROASDELL
TODD E. RINNER
RODEY, DICKASON, SLOAN, AKIN
& ROBB, P.A.
for Defendants-Appellees
limitations as a defense until the plaintiff
learned or, through reasonable diligence,
could have learned of the cause of action.
Accordingly we reverse and remand to the
district court.
I.Background
{2}Alice Brice (Decedent) died in an automobile accident on September 13, 2006,
when her 2002 Toyota Camry suddenly
accelerated into a highway intersection,
collided with a tractor-trailer, and burst into
flames. The Estate of Alice C. Brice (Plaintiff)
filed a wrongful death lawsuit on August 31,
2010, asserting products liability and various
other claims against the car manufacturer,
the dealer, and others (Defendants).
{3}Because this wrongful death action
was filed three years and eleven months
from the date of Decedent’s death, Defendants moved for judgment on the pleadings in district court pursuant to Rule
1-012(C) NMRA. Defendants argued that
under the three-year statute of limitations
period in the WDA, (1) a wrongful death
cause of action accrues “as of the date of
death,” § 41-2-2 (1961), (2) this provision
is strictly construed, and (3) this provision
does not allow for tolling. Plaintiff argued
that the statute of limitations period was
equitably tolled by Defendants’ fraudulent
concealment. Plaintiff alleges that Defendants prevented Plaintiff from obtaining
knowledge about the cause of action, that
Defendants were aware of the sudden
acceleration problem in its vehicles for
most of the decade preceding 2010 and
well before Decedent’s 2006 accident, and
that Defendants fraudulently concealed
these problems until February 2010 when
the sudden acceleration problems drew
public attention and led to congressional
hearings. Plaintiff contends that it had no
way to discover its wrongful death cause
of action before February 2010. Plaintiff
asserts that after discovering its cause of
action, it promptly filed its wrongful death
suit on August 31, 2010.
{4} The district court granted Defendants’
motion for judgment on the pleadings.
Plaintiff appealed the unfavorable summary judgment to the Court of Appeals,
claiming that the WDA limitations period
may be equitably tolled on the basis of
fraudulent concealment. The Court of
Appeals certified the appeal to this Court
under NMSA 1978, Section 34-5-14(C)
(2) (1972) and Rule 12-606 NMRA stating that resolution of this appeal involves
significant issues of law and policy that are
of substantial public interest that should be
determined by the New Mexico Supreme
Court. We accepted certification.
Standard of Review
{5}Whether the doctrine of fraudulent
concealment may serve to toll the statutory limitations period for a cause of action under the WDA presents an issue of
statutory interpretation, which we review
de novo. See Glaser v. LeBus, 2012-NMSC012, ¶ 8, 276 P.3d 959. “When this Court
construes statutes, our guiding principle
is that we should determine and effectuate
the Legislature’s intent when it enacted
the statute.” State ex rel. Brandenburg
v. Sanchez, 2014-NMSC-022, ¶ 4, 329
P.3d 654. “In discerning the Legislature’s
intent, we are aided by classic canons of
23
Advance Opinions
statutory construction, and [w]e look
first to the plain language of the statute,
giving the words their ordinary meaning,
unless the Legislature indicates a different
one was intended.” Delfino v. Griffo, 2011NMSC-015, ¶ 12, 150 N.M. 97, 257 P.3d
917 (alteration in original) (internal quotation marks and citation omitted). “We
have repeatedly cautioned that despite the
‘beguiling simplicity’ of parsing the words
on the face of a statute, we must take care
to avoid adoption of a construction that
would render the statute’s application
absurd or unreasonable or lead to injustice or contradiction.” State v. Strauch,
2015-NMSC-009, ¶ 13, 345 P.3d 317.
Therefore, when the Legislature’s intent
is not clear from the plain language of a
statute, “we consider the statute’s history
and background insofar as it may help to
give effect to the Legislature’s intent.” Truong v. Allstate Ins. Co., 2010-NMSC-009,
¶ 33, 147 N.M. 583, 227 P.3d 73 (internal
quotation marks and citation omitted).
Indeed, “[s]tatutes should be construed
so as to facilitate their operation and the
achievement of the goals as specified by
the legislature.” Roberts v. Sw. Cmty. Health
Services, 1992-NMSC-042, ¶ 12, 114 N.M.
248, 837 P.2d 442.
II.Discussion
{6}Plaintiff argues that the doctrine of
fraudulent concealment is deeply rooted
in the common law and provides equitable
grounds for tolling the limitations period
in the WDA. Defendants argue that the
limitations period in the WDA must be
“strictly” applied and that it is for the
Legislature to decide if fraudulent concealment applies to toll the limitations period
of the WDA. To resolve this issue of first
impression, we discuss the common-law
doctrine of fraudulent concealment and
then examine whether the Legislature
intended fraudulent concealment to apply
to the limitations period in the WDA. Finally, we consider Defendants’ reliance on
a number of older, inapposite cases, both
from this Court and the Court of Appeals.
A.Fraudulent Concealment at
Common Law and in New Mexico
{7} The common law has long recognized
that a person who commits fraud should
not be permitted to benefit from that
conduct. See, e.g., Talbot v. Jansen, 3 U.S.
(3 Dall.) 133, 158 (1795) (“[P]ersons guilty
of fraud, should not gain by it. Hence the
efficacy of the legal principle, that no man
shall set up his own fraud or iniquity, as
a ground of action or defence.”). Public
policy further supports this legal principle.
24
To decide the case we need look
no further than the maxim that
no man may take advantage of
his own wrong. Deeply rooted in
our jurisprudence this principle
has been applied in many diverse
classes of cases by both law and
equity courts and has frequently
been employed to bar inequitable
reliance on statutes of limitations.
Glus v. Brooklyn E. Dist. Terminal, 359 U.S.
231, 232-33 (1959).
{8} It is well settled in both “general common law” and “federal law[] that fraudulent concealment of a cause of action by
the defendant will toll the statute of limitations.” Prather v. Neva Paperbacks, Inc., 446
F.2d 338, 340-41 (5th Cir. 1971) (citations
and footnote omitted); see, e.g., Bailey v.
Glover, 88 U.S. 342, 347-50 (1874) (tolling
the statute of limitations period because
the defendant’s fraudulent concealment
of assets during bankruptcy proceedings
prevented the plaintiff from discovering
the injury incurred by that concealment);
Holmberg v. Armbrecht, 327 U.S. 392, 397
(1946) (concluding that the equitable doctrine of fraudulent concealment “is read
into every federal statute of limitation”).
{9}In 1876, before the enactment of
the WDA, the New Mexico Territorial
Legislature adopted “the common law
as recognized in the United States of
America” as the law of New Mexico.
NMSA 1978, § 38-1-3 (1876); see Lopez
v. Maez, 1982-NMSC-103, ¶ 6, 98 N.M.
625, 651 P.2d 1269. Not only has New
Mexico adopted the common law, to the
extent it is applicable to our “condition
and circumstances,” Johnson v. Amstutz,
1984-NMSC-030, ¶ 3, 101 N.M. 94, 678
P.2d 1169, the New Mexico courts likewise generally adhere to the proposition
that one should not be allowed to take
advantage of one’s own wrong, see, e.g.,
Sauter v. Saint Michael’s College, 1962NMSC-107, ¶ 24, 70 N.M. 380, 374 P.2d
134 (“To permit the defendant to invoke
the doctrine of estoppel against a situation
created by his own fraud would certainly
not be in keeping with the principles of
equity and it is a fundamental principle
of equity that no one can take advantage
of his own wrong.”).
{10} Consistent with those views, New
Mexico courts have applied the doctrine
of fraudulent concealment. See, e.g.,
Kern ex rel. Kern v. St. Joseph Hosp., Inc.,
1985-NMSC-031, ¶¶ 10-11, 102 N.M.
452, 697 P.2d 135 (discussing fraudulent
concealment in the context of medical
malpractice). In New Mexico, the doctrine
of fraudulent concealment is distinct from
but is nonetheless grounded “upon the
principle of equitable estoppel. The theory
is premised on the notion that the one who
has prevented the plaintiff from bringing
suit within the statutory period should
be estopped from asserting the statute of
limitations as a defense.” Id. ¶ 10 (citations
omitted). A plaintiff alleging fraudulent
concealment carries the burden to establish all facts necessary to prove it. See id.
¶ 12. To toll a statutory limitations period
under the doctrine of fraudulent concealment, the plaintiff must prove that (1) the
defendant knew of the alleged wrongful
act and concealed it from the plaintiff or
had material information pertinent to its
discovery which he failed to disclose, and
(2) the plaintiff did not know, or could not
have known through the exercise of reasonable diligence, of the cause of action within
the statutory period. Id.; see also Tomlinson
v. George, 2005-NMSC-020, ¶¶ 13, 15, 138
N.M. 34, 116 P.3d 105 (concluding that
fraudulent concealment did not preclude
the defendant from asserting the limitations
period as a defense because the defendant
did not prevent the plaintiff from filing suit
within the statutory period). If the plaintiff
meets the burden of proof and the doctrine
tolls the statutory limitations period, “the
statute commences to run again when the
[plaintiff] discovers, or through the exercise
of reasonable diligence should have discovered, the [cause of action].” Tomlinson,
2005-NMSC-020, ¶ 13.
{11} Defendants rely on a number of
New Mexico cases addressing statutes of
limitations. But in so doing, Defendants
misperceive the nature of fraudulent
concealment and its distinct place in our
jurisprudence. The doctrine of fraudulent
concealment, a type of equitable tolling,
is distinct from the doctrine of equitable
estoppel. The two doctrines, while related,
apply in different circumstances.
Equitable tolling permits a plaintiff to avoid the bar of the statute
of limitations if despite the exercise of all due diligence he is
unable to obtain vital information
bearing on the existence of his
claim. In contrast, the doctrine
of equitable estoppel comes into
play if the defendant takes active
steps to prevent the plaintiff from
suing in time, as by promising not
to plead the statute of limitations.
Shropshear v. Corp. Counsel of the City of
Chicago, 275 F.3d 593, 595 (7th Cir. 2001).
Advance Opinions
{12} Put another way,
The difference between [equitable] estoppel and fraudulent concealment, as generally articulated,
is this: fraudulent concealment
applies when the plaintiff lacks
actual or constructive notice of
his or her claim, while equitable
estoppel applies when a plaintiff
who knows of his cause of action
reasonably relies on the defendant’s statement or conduct in
failing to bring suit.
Towne v. Robbins, 339 F. Supp. 2d 1105,
1117 (D. Or. 2004) (internal quotation
marks and citations omitted).1
{13} Equitable estoppel and equitable
tolling thus both serve to toll the limitations period for the duration of a defendant’s fraud or a plaintiff ’s reliance, as
applicable, but these doctrines do not
affect the date on which a cause of action
accrues. See generally Kern, 1985-NMSC031, ¶ 12 (explaining the burden of proof
to be carried by a plaintiff seeking to
toll the statutory limitation period). In
contrast, a discovery rule actually serves
to set the date on which a cause of action
accrues to (as the name suggests) the date
on which the cause of action was discovered or should have been discovered with
the exercise of diligence. Maestas v. Zager,
2007-NMSC-003, ¶ 1, 141 N.M. 154, 152
P.3d 141.
{14} While we have not had the opportunity to provide the contrasting definitions
of these terms before now, the New Mexico
courts have consistently treated the different doctrines as distinct. In Kern, a medical malpractice case where the defendant
concealed the cause of the plaintiff ’s injury,
we held that the doctrine of fraudulent
concealment may serve to toll the limitations period. 1985-NMSC-031, ¶¶ 13-14;
see also Tomlinson, 2005-NMSC-020, ¶¶ 15
(holding that where the plaintiff learned of
the defendant’s concealment of the cause
of the injury before the limitations period
had ended the doctrine of fraudulent concealment did not toll the statutory time).
And in Perry v. Staver, 1970-NMCA-096,
¶ 11, 81 N.M. 766, 473 P.2d 380, where
the plaintiff alleged that the defendants
had indicated that they would not rely on
a statute of limitations defense and the
plaintiff had relied on that assertion, the
Court of Appeals considered (and ultimately rejected) the plaintiff ’s argument
that equitable estoppel should toll the
limitations period. In that case, there was
no mention of the doctrine of fraudulent
concealment. See id.
{15} We have likewise distinguished
fraudulent concealment from a discovery
rule. In Clark v. Lovelace Health Systems,
Inc., 2004-NMCA-119, ¶¶ 9, 20, 136 N.M.
411, 99 P.3d 232, the plaintiffs argued
that the date of accrual of their wrongful
death action was the date upon which
they learned of, or should have with due
diligence learned of, the injury and its
cause, but the Court of Appeals declined
to apply the discovery rule to the wrongful
death act. See Kern, 1985-NMSC-031, ¶ 11
(specifying under the discovery rule that
the statute begins to “run again” when the
plaintiff discovers, or through the exercise
of due diligence should have discovered,
the malpractice). In Tomlinson, a malpractice case, the defendant concealed his
misconduct, but the plaintiff discovered
the cause of action just four months into
the three-year limitations period, and
did not save the untimely action brought
after the three-year limitations period
had ended. Tomlinson, 2005-NMSC-020,
¶ 12. The plaintiff argued that a discovery
rule should apply, so that her cause of action would not accrue until the date she
discovered the cause, but we disagreed.
Tomlinson, 2005-NMSC-020, ¶¶ 12-14.2
{16} Limitations periods are intended to
encourage plaintiffs to diligently pursue a
claim once an injury has been discovered.
The doctrine of fraudulent concealment
properly balances the principle of stopping
defendants from benefitting from fraudulent concealment that prevents plaintiffs
from filing claims, while continuing to
require plaintiffs to exercise ordinary diligence in pursuit of a cause of action. See
Tomlinson, 2005-NMSC-020, ¶ 26. In Tomlinson, we explained that “an unduly long”
limitations period, or one that relied upon
a discovery based accrual date, “would
place an unfair burden on the medical
profession.” 2005-NMSC-020, ¶ 8 (internal
quotation marks and citation omitted). We
observed that the New Mexico Legislature
had carefully balanced the need for citizens
to have an opportunity to bring a timely
malpractice case where appropriate with
the need to prevent insurance carriers
from withdrawing medical malpractice
liability coverage in New Mexico. Id.
{17} In balancing these competing concerns, we concluded that the Legislature
intended to create an exception to the
three-year limitations period in the case
of fraudulent concealment, but did not
intend to subject “‘health care providers
[to] the much greater liability exposure
that would flow from a discovery-based
accrual date.’” Id. (quoting Roberts v. Sw.
Cmty. Health Services, 1992-NMSC-042,
¶ 14). Finally, after qualifying the role
of discovery rules in cases of fraudulent
concealment, we concluded that the
doctrine of fraudulent concealment applies to claims brought under the Medical
Malpractice Act but that the discovery
rule did not apply in that case. Tomlinson,
2005-NMSC-020, ¶ 26.
B. Wrongful Death Act
{18} Wrongful death actions were not
permitted at common law based on the
belief that the right of recovery died with
the injured party and on the theory that a
person harmed by another’s death had no
right to recover. See, e.g., Baker v. Bolton
(1808) 170 Eng. Rep. 1033 (“In a civil
Court, the death of a human being could
not be complained of as an injury, and in
this case the damages, as to the plaintiff ’s
wife, must stop with the per[i]od of her
existence.”); see also Wex S. Malone, The
Genesis of Wrongful Death, 17 Stan. L.
Rev. 1043, 1044 (1965). Scholars attribute
the rise of wrongful death actions in the
nineteenth century to a shift from unnatural deaths caused by person-to-person
violence, to “a virtually new phenomenon—accidental death through corporate
enterprise.” Id. at 1043 (“Tragedy as a result
of indifference and neglect was suddenly
upon us in the factory, on the city streets,
and on the rails. Nor was the . . . villain
of the piece any longer the impecunious
1We recognize that some courts have used the term fraudulent concealment to describe both the tolling of a limitations or repose
period “based on a defendant’s misconduct” and to describe the type of estoppel that applies to “deliberate or otherwise blameworthy
conduct by the defendant that causes the plaintiff to miss the statutory deadline.” Shropshear, 275 F.3d at 595-97. But given that the
latter involves concealment of nothing other than the defendant’s “bad intent,” id. at 597, we believe there will be less confusion if we
limit the use of the term fraudulent concealment in the statute of limitations context to equitable tolling.
2In Tomlinson, we referred to this type of fraudulent concealment as a tolling mechanism and a type of estoppel. See 2005-NMSC020, ¶¶ 13-14. We now clarify that fraudulent tolling is a type of equitable tolling.
25
Advance Opinions
felon. In his place stood the prospering
corporation with abundant assets to meet
the needs of widows and orphans.”). As
a result of these developments, the rationale behind prohibiting causes of actions
in wrongful death cases was no longer
persuasive, and wrongful death statutes
became widespread across the country.
The United States Supreme Court observed
almost half a century ago that
[t]hese numerous and broadly
applicable statutes, taken as a
whole, make it clear that there is
no present public policy against
allowing recovery for wrongful
death. The statutes evidence a
wide rejection by the legislatures
of whatever justifications may
once have existed for a general
refusal to allow such recovery.
This legislative establishment of
policy carries significance beyond
the particular scope of each of
the statutes involved. The policy
thus established has become itself
a part of our law, to be given its
appropriate weight not only in
matters of statutory construction
but also in those of decisional law.
Moragne v. States Marine Lines, Inc., 398
U.S. 375, 390-91 (1970).
1.The plain language, history, and
purpose of New Mexico’s WDA
{19} New Mexico adopted its Wrongful
Death Act (WDA) in 1882. See 1882 N.M.
Laws ch. 61, § 2. In New Mexico, actions
for wrongful death are controlled by Sections 41-2-1 to -4. Section 41-2-1 provides,
Whenever the death of a person
shall be caused by the wrongful
act, neglect or default of another,
although such death shall have
been caused under such circumstances as amount in law to a
felony, and the act, or neglect, or
default, is such as would, if death
had not ensued, have entitled
the party injured to maintain
an action and recover damages
in respect thereof, then, and in
every such case, the person who,
or the corporation which, would
have been liable, if death had not
ensued, shall be liable to an action
for damages, notwithstanding the
death of the person injured.
{20} Consistent with the enactment of
similar statutes across the nation, New
Mexico’s WDA was intended to replace
the common-law rule barring recovery
in cases of wrongful death so as to allow
26
recovery and to discourage and punish
negligent behavior by corporations. This
Court has articulated a two-fold purpose
behind the WDA: (1) “to compensate
the statutory beneficiaries and to deter
negligent conduct” (Romero v. Byers,
1994-NMSC-031, ¶ 17, 117 N.M. 422,
872 P.2d 840), and (2) to “promote safety
of life and limb by making negligence that
causes death costly to the wrongdoer.”
Stang v. Hertz, 1970-NMSC-048, ¶ 9, 81
N.M. 348, 467 P.2d 14; see also Trujillo v.
Prince, 1938-NMSC-024, ¶ 17, 42 N.M.
337, 78 P.2d 145 (“[The WDA] has to some
degree an objective of public punishment
and was designed in part at least to act as a
deterrent to the negligent conduct of others and thereby promote the public safety
and welfare.”).
{21} Section 41-2-2 of the WDA provides
a statutory period of limitation on wrongful death actions: “Every action instituted
by virtue of the provisions of this and the
preceding section [41-2-1 NMSA 1978]
must be brought within three years after
the cause of action accrues. The cause of
action accrues as of the date of death.”
The limitations provision of the WDA
has undergone multiple revisions since
its enactment in 1882. The original 1882
version included a limitation on actions
for one year: “Every action instituted by
virtue of the provisions of this act must be
brought within one year after the cause of
action shall have accrued . . . .” 1882 N.M.
Laws, ch. 61, § 9. The original statute was
silent regarding whether the cause of action accrued when the injury occurred
or upon the decedent’s death. In 1887
the Legislature repealed the limitations
section. 1887 N.M. Laws, ch. 2, § 7. Then,
in 1889, the Legislature reinstated the
original limitations section. 1889 Laws,
ch. 75, § 4; see also Gallegos v. Atchison,
T.&S.F.Ry. Co., 1923-NMSC-032, ¶¶ 6-8,
28 N.M. 472, 214 P. 579 (explaining that
“the repeal of [the] repealing act” revived
the original one-year limitations period in
the WDA).
{22} Since 1889, the Legislature has
amended the limitation period of the
WDA twice in response to judicial decisions. In Natseway v. Jojola, this Court held
that the beneficiaries’ cause of action accrued under the WDA when the decedent
was injured, not when the decedent died.
See 1952-NMSC-104, ¶¶ 21, 26, 56 N.M.
793, 251 P.2d 274, superseded by statute,
1961 N.M. Laws ch. 202, § 1, as recognized in State Farm Mut. Auto. Ins. Co.
v. Luebbers, 2005-NMCA-112, 138 N.M.
289, 119 P.3d 169. This meant that an action for wrongful death could be barred by
the one-year limitations restriction in the
WDA even before the death had occurred.
In 1953, following Natseway, the Legislature extended the limitations period from
one year to three years. 1953 N.M. Laws,
ch. 30, § 1; NMSA 1953, § 22-20-2. In
Kilkenny v. Kenney, we again held that the
new three-year limitations provision ran
from the date of injury, rather than the date
of death. See 1961-NMSC-019, ¶¶ 6-14,
68 N.M. 266, 361 P.2d 149, superseded by
statute, 1961 N.M. Laws, ch. 202, § 1. Following Kilkenny, the Legislature amended
the WDA in 1961 to specify that a “cause
of action accrues as of the date of death,”
1961 N.M. Laws, ch. 202, § 1, providing
plaintiffs three years from the decedent’s
death to bring an action under the WDA.
{23} While the WDA sets forth a statute
of limitations, it does not speak to whether
fraudulent concealment applies. Therefore,
we look to the context in which the words
of the 1961 enactment were written to
determine the Legislature’s intent.
2.When the appropriate showing
is made, fraudulent concealment
applies to an action under the
WDA
{24} As it often does after establishing a
statutory general principle, the Legislature
has left it to us to provide the nuances
involved in the statute’s practical application. See State v. Olsson, 2014-NMSC-012,
¶¶ 45-47, ¶ 50 (Chavez, J., dissenting)
(explaining a court’s role in resolving
ambiguous statutory language ), 324 P.3d
1230. As Defendants observe, the WDA is
“an expression of legislative policy.”
{25} In 1889, when the Legislative Assembly reinstated the limitations provision in the WDA, it was on notice that
the common-law doctrine of fraudulent
concealment existed as part of the common law of New Mexico. See NMSA
1978, § 38-1-3 (1876, amended 1915)
(recognizing the common law as “the rule
of practice and decision” in New Mexico
courts). And the Legislative Assembly
did not expressly address applicability
of the doctrine. See Sims v. Sims, 1996NMSC-078, ¶ 24, 122 N.M. 618, 930 P.2d
153 (“In relying upon the common law
to resolve statutory omissions and ambiguities, we presume the [L]egislature was
well informed about the existing common law before the statute was enacted
and did not intend to enact a statute that
conflicted with the common law.”); Doe v.
State ex rel. Governor’s Organized Crime
Advance Opinions
Prevention Comm’n, 1992-NMSC-022, ¶
12, 114 N.M. 78, 835 P.2d 76 (noting that
we interpret a statute “as the [L]egislature
understood it at the time it was passed”).
Therefore, as this Court explained in Sims,
the common law remains in place to fill
gaps not addressed expressly by a statute.
1996-NMSC-078, ¶ 23 (“[T]he common
law, upon its adoption, came in and filled
every crevice, nook and corner in our jurisprudence where it had not been stayed
or supplanted by statutory enactment, in
so far as it was applicable to our conditions
and circumstances.” (internal quotation
marks and citation omitted)).
{26} Accordingly, the common-law doctrine of fraudulent concealment remains in
place to fill the gap left by the plain language
of the WDA, which does not expressly address this issue. See Moragne, 398 U.S. at
391 (1970) (“It has always been the duty
of the common-law court to perceive the
impact of major legislative innovations and
to interweave the new legislative policies
with the inherited body of common law
principles.”). This is consistent with New
Mexico’s public policy to discourage fraud.
As we noted in Tomlinson, “[f]raudulent
conduct has always provided equitable
grounds for relaxing a statutory time limit.”
2005-NMSC-020, ¶ 9 (internal quotation
marks and citation omitted).
{27} In accordance with this public
policy, New Mexico courts have held that
applies to toll the limitations period for
other New Mexico statutes, including the
Medical Malpractice Act, NMSA 1978, §§
41-5-1 to -29 (1976, as amended through
2015), see, e.g., Kern, 1985-NMSC-031,
¶ 10, and the Tort Claims Act, NMSA
1978, §§ 41-4-1 to -30 (1976, as amended
through 2015), see, e.g., Armijo v. Regents
of Univ. of N.M., 1984-NMCA-118, ¶ 20,
103 N.M. 183, 704 P.2d 437, rev’d on other
grounds, 1985-NMSC-057, 103 N.M. 174,
704 P.2d 428.
{28} The Legislature intends to require
plaintiffs to exercise ordinary diligence,
not extraordinary clairvoyance. Because
our role is to discern and effectuate the
contours of legislative policy, and the
policy supporting the WDA was to provide
litigants a fair opportunity to present their
claims in a timely fashion, we conclude
that the Legislature must have intended
that the doctrine of fraudulent concealment applies to a WDA case where the
appropriate requisites are met.
{29} Defendants remind us that we should
not “alter” legislative choices even where
they are “unjust” or “absurd.” But here we
do not “alter” a legislative choice; to the
contrary, we follow one. At oral argument,
Defendants could articulate no explanation
as to why the Legislature would not have
intended fraudulent concealment to apply
to the WDA, and we can discern no rational
reason that the Legislature would not have
intended the doctrine’s application.
{30} Adopting a strict construction of the
WDA, as argued by Defendants, would
defeat the remedial purpose of the act:
It would be a misfortune if a
narrow or grudging process of
construction were to exemplify
and perpetuate the very evils to
be remedied. There are times
when uncertain words are to be
wrought into consistency and
unity with a legislative policy
which is itself a source of law, a
new generative impulse transmitted to the legal system.
Van Beeck v. Sabine Towing Co., 300 U.S.
342, 350-51 (1937) (footnote omitted). It is
consistent with the purpose of the WDA to
toll the statutory limitations period where
a defendant has fraudulently concealed the
cause of action. Put another way, allowing
a defendant to conceal a cause of action
and then assert the statute of limitations as
a defense would be contrary to the intent
behind the WDA. The Legislature did not
intend for statutory beneficiaries to be uncompensated in cases where the tortfeasor
kept them from learning that they had a
cause of action. Far from deterring negligent conduct, barring a plaintiff ’s cause
of action, even in light of a defendant’s
fraudulent concealment, tells tortfeasors
that they may escape civil liability so long
as they successfully conceal their wrongdoings for three years. Rather than promoting
safety of life and limb by making negligence
that causes death costly to the wrongdoer,
the wrongdoer would avoid any cost incurred by its negligent conduct by merely
hiding evidence of the conduct for a set
period of time. In light of the purpose behind the WDA, the Legislature could not
have intended for defendants to be entitled
to hide behind fraudulent concealment.
Indeed, we will neither sanction fraud nor
presume the Legislature intended to do
so by allowing a party to conceal a wrong
until the statute of limitations has run and
then benefit from the deception. Having
considered the plain language, history, and
purpose of the WDA, we conclude that the
Legislature intended for the doctrine of
fraudulent concealment to apply to wrong-
ful death actions.
3. Missouri Supreme Court’s
interpretation of its wrongful
death act
{31} Defendants also argue that the Missouri courts’ conclusion that fraudulent
concealment applies to the Missouri WDA
does not compel the same conclusion
here. Specifically, Defendants maintain
that a crucial difference between the New
Mexico and the Missouri wrongful death
acts regarding the accrual date of a cause
of action renders Missouri law inapplicable
to New Mexico. In O’Grady v. Brown, the
Missouri Supreme Court observed that,
much like New Mexico’s WDA, the purpose
of Missouri’s wrongful death act is “to provide compensation to bereaved plaintiffs
for their loss, to ensure that tortfeasors pay
for the consequences of their actions, and
generally to deter harmful conduct which
might lead to death.” O’Grady v. Brown,
654 S.W.2d 904, 909 (Mo. 1983) (en banc).
O’Grady sought to “apply the statutory
language with a view to promoting the apparent object of the legislative enactment.”
Id. (internal quotation marks and citation
omitted). More recently, Missouri courts
have held that the doctrine of fraudulent
concealment applies to wrongful death actions in Missouri. See e.g., State ex rel. Beisly
v. Perigo, 469 S.W.3d 434, 445 (Mo. 2015).
{32} In the past we have found the Missouri Supreme Court’s interpretation of
its wrongful death act helpful in ascertaining the legislative intent behind New
Mexico’s WDA. See Langham v. Beech
Aircraft Corp., 1975-NMSC-064, ¶ 19, 88
N.M. 516, 543 P.2d 484 (“Our wrongful
death statutes were taken from Missouri
and this [C]ourt has often followed the
views of the Missouri Supreme Court in
its interpretations of these statutes.”). Regardless of whether Missouri’s conclusion
that fraudulent concealment will toll its
wrongful death statute’s limitation period
is “presumed” to guide our decision here
or is merely “entitled to respectful consideration” (Cain v. Bowlby, 114 F.2d 519, 523
(10th Cir. 1940)), our conclusion would
be the same. But see Estate of Krahmer ex
rel. Peck v. Laurel Healthcare Providers,
LLC, 2014-NMCA-001, ¶ 13, 315 P.3d 298
(“Missouri’s [wrongful death act’s] historical relevance to our Act has ended.”).
4.The parties’ statutory construction
arguments elevate form over
substance and do not aid the
analysis here
{33} The parties, focusing less on the
history and purposes of the statute and
27
Advance Opinions
more on peripheral rules of statutory construction, devote portions of their briefs to
arguing which of these rules of statutory
construction control. Plaintiff argues that
the WDA is remedial legislation, enacted
in derogation of the common law, and
that statutes in derogation of common
law are generally strictly construed. But,
Plaintiff continues, where a statute is both
remedial and in derogation of common
law the question of whether the statute
modifies common law is to be strictly
construed and, if the statute does modify
common law, its application should be
liberally construed. Defendants argue
that the WDA statute of limitations must
be strictly applied, because it altered the
common-law rule barring recovery for
a wrongful death. We are not persuaded
that either construction aids or materially affects our analysis here. We will not
interpret statutes to change the common
law unless they do so with clarity. There
is no more reason to reject a fair reading
that changes the common law than there
is to reject a fair reading that repeals an
earlier statute. Indeed, “[t]here is no hierarchical difference between common
law rules which are based on statutory
enactments and common law rules which
are based in judicial decisions.” Hanebuth
v. Bell Helicopter Int’l, 694 P.2d 143, 146
(Ala. 1984) (stating that wrongful death
statutes “should be liberally construed to
accomplish their remedial purpose,” not
“crippled . . . by . . . a narrow construction on the basis that these statutes are in
derogation of the common law”) (internal
quotation marks and citation omitted); see
also Dennis M. Doiron, A Better Interpretation of the Wrongful Death Act, 43 Me.
L. Rev. 449, 459 (1991) (“[T]he rule of
strict construction, as specifically applied
to [Maine’s] wrongful death act, is no
longer appropriate because contemporary
common law principles overwhelmingly
support recovery for wrongful death.”).
The Defendants’ statutory construction
arguments here elevate “formalistic legal
abstraction[s]” (Hanebuth, 694 P.2d at 14546 (internal quotation marks and citations
omitted)), above reason, logic, and equity.
{34} We are not presented here with
an issue of stare decisis. Nor does “New
Mexico jurisprudence . . . point[,] ineluctably” or otherwise, to the conclusion
Defendants urge here, that New Mexico’s
historically strict application of statutes
of limitation prohibits application of the
doctrine of fraudulent concealment here.
It is true, as Defendants observe, that
28
we have declined to read terms into the
WDA’s limitation provision. For example,
in Kilkenny, 1961-NMSC-019, ¶¶ 7-14,
Natseway, 1952-NMSC-104, ¶ 26, and
State ex rel. DeMoss v. District Court of the
Sixth Judicial District, 1951-NMSC-010, ¶
9, 55 N.M. 135, 227 P.2d 937, we declined
to adjust the statutorily dictated date of accrual of the cause of action. But here we are
not reading an exception into the statute
or changing a legislative choice. Rather, we
are carrying out the Legislature’s intent that
the common-law doctrine of fraudulent
concealment applies to the limitations
provision of the WDA.
{35} In fact, the amendments following
Kilkenny and Natseway demonstrate the
Legislature’s intent to expand the class of
statutory beneficiaries who may recover
under the WDA; applying the doctrine
of fraudulent concealment to the WDA
limitations period is consistent with such
an intent. Defendants argue that it is the
Legislature’s role, not this Court’s role, to
determine whether a tolling provision applies to the WDA. Defendants rely, in part,
on Kilkenny and Natseway, observing that
in those cases we refused to conclude that
the date of death was the accrual date for
purposes of the limitation provision of the
WDA and left it to the Legislature to alter
the statute. In response to these cases, the
Legislature did amend the WDA by explicitly stating that a cause of action under this
statute accrues as of the date of death. See
1961 Laws, ch. 202, § 1. The outcomes in
Kilkenny and Natseway reflect the general
purpose behind statutes of limitations,
which is to protect defendants from having
to defend against stale claims and to ensure
that plaintiffs timely pursue claims. See
Garcia v. LaFarge, 1995-NMSC-019, ¶ 14,
119 N.M. 532, 893 P.2d 428. In contrast,
here we focus on fraudulent concealment,
a doctrine which prevents defendants from
benefitting from their own misconduct.
See, e.g., Kern, 1985-NMSC-031, ¶ 10.
{36} Nor are we persuaded by Defendants’ reliance on two cases from the
Court of Appeals. As discussed earlier, in
Perry v. Staver, the plaintiff initially filed
his wrongful death claim in the wrong
county. See 1970-NMCA-096, ¶ 19. The
defendants moved to dismiss, and the
district court dismissed with prejudice.
See id. ¶¶ 3, 19. The plaintiff moved to
vacate the dismissal, and the district court
issued an order directing the defendants to
show cause why the order dismissing with
prejudice should not be set aside. See id. ¶
3. In their response, the defendants stated
that the dismissal “does not prevent” the
plaintiff “from taking any action separate
and apart from this cause.” Id. ¶ 4 (internal
quotation marks omitted).
{37} The district court vacated and set
aside the original dismissal order and
instead dismissed without prejudice. See
id. ¶ 5. The plaintiff next filed his wrongful death action in the correct county, and
this time the defendants moved to dismiss
because the limitations period in the WDA
had run. See id. ¶¶ 3-9. The district court
dismissed again, and the plaintiff appealed
to the Court of Appeals. See id. ¶ 6. On appeal, the plaintiff argued, in part, that the
defendants were estopped from asserting
a statute of limitations defense because the
defendants’ language in response to the
earlier order to show cause—specifically,
the defendants’ statement that the dismissal did not prevent the plaintiff from
taking any separate action—amounted to
a waiver of that defense. See id. In addition
to rejecting the plaintiff ’s waiver argument
on the facts, the Court of Appeals held
that the doctrine of equitable estoppel did
not apply to the WDA. See id. ¶¶ 3-9. The
Court concluded that “[e]stoppel cannot
be successfully asserted to lengthen the
existence of such a statutorily created right
of recovery.” See id. ¶ 6.
{38} Because the issue in Perry was
equitable estoppel, not fraudulent concealment, Perry is inapposite to our decision here. As we have explained, the two
doctrines are different. Only fraudulent
concealment concerns itself with a defendant’s willful, deceitful conduct, and it is
consistent with the history and purpose
of the WDA that the Legislature intended
to apply fraudulent concealment to the
limitations provision of the WDA. See id.
¶ 11.
{39} Clark supports our conclusion
here. In Clark, the decedent, who suffered
from severe obstructive sleep apnea, died
after taking a number of medications in
combination, including methadone and
Propulsid. See 2004-NMCA-119, ¶ 2. Following an autopsy the medical examiner
concluded that it was methadone intoxication that had caused the decedent’s death.
See id. Two years later the FDA announced
that Propulsid would be discontinued
due to its association with reports of
heart abnormalities and deaths. See id.
The plaintiffs filed their initial complaint,
against the doctors who had been treating
the decedent, in a timely manner. See id.
The plaintiffs deposed one of two doctors involved in prescribing the multiple
Advance Opinions
medications a little after three years past
the decedent’s death. See id.¶ 3.
{40} In his deposition, that doctor testified that he did not know what killed the
decedent but that Propulsid would be
“at the top of his list.” Id. That doctor explained that it would not have been known
at the time of the autopsy that Propulsid
should be considered a suspect in the
decedent’s death, but at the time of the
deposition Propulsid would be blamed if
there was no other “obvious explanation.”
See id. (internal quotation marks omitted).
The plaintiffs amended their complaint
to add two pharmaceutical companies as
defendants in their products liability claim,
but these defendants successfully moved to
dismiss based on the fact that the amended
complaint had been filed more than three
years after the decedent had died. See id.
¶¶ 3-4.
{41} On appeal to the Court of Appeals,
the plaintiffs urged the Court to apply the
discovery rule to the WDA and to conclude that their cause of action accrued on
the date they learned that Propulsid and
the two additional defendants may have
caused the injury that led to the decedent’s
death. See id. ¶¶ 3-5. The Court of Appeals
declined to apply the discovery rule to the
WDA. See id. ¶ 20. But in distinguishing
some of the out-of-jurisdiction authority
the plaintiffs relied upon in that case, the
Court observed that many of those cases
involved “exceptional circumstances or
situations where it was impossible for the
plaintiff to know the cause of the decedent’s
death in order to be able to timely file a
wrongful death claim” (id. ¶ 16), suggesting
that such circumstances might require a
different result. Accordingly, while holding
that the discovery rule was inapplicable
to the WDA, the Court indicated that it
may have decided the case differently if
the defendants’ conduct had amounted to
fraudulent concealment. See Id.
{42} We conclude that neither Perry nor
Clark compels the conclusion that the
doctrine of fraudulent concealment may
not apply to the WDA. To the extent that
either opinion is inconsistent with our
decision today it is overruled.
III.Conclusion
{43} We hold that the doctrine of fraudulent concealment may toll the three-year
statute of limitations period for wrongful
death actions in New Mexico. However,
we do not determine whether Defendants
fraudulently concealed Plaintiff ’s cause of
action. On remand the district court shall
determine if the limitations period set
forth in Section 41-2-2 was tolled until
Plaintiff had actual knowledge of its cause
of action or, through reasonable diligence,
Plaintiff could have learned it had a cause
of action.
WE CONCUR:
JUDITH N. NAKAMURA, Justice,
not participating
29
Advance Opinions
No. S-1-SC-35460 (filed February 11, 2016)
IN THE MATTER OF ARMANDO TORRES, ESQUIRE
An Attorney Licensed to Practice Before the
Courts of the State of New Mexico
OPINION AND PUBLIC CENSURE
JANE GAGNE
for Disciplinary Board
Opinion and Public Censure
Edward L. Chávez, Justice
{1} This opinion and public censure concerns an attorney whose neglect resulted
in the dismissal of his client’s personal
injury case for failure to prosecute and the
attorney’s subsequent efforts to make his
client whole through deception. During
the disciplinary proceedings it was also
discovered that the attorney violated Rule
16-104(C) NMRA by failing to notify his
client that his liability insurance had lapsed
during his representation of her.
{2}Armando Torres has practiced law
since October 1977. The vast majority of
his practice has been in criminal defense
work under contract with the Law Office
of the Public Defender. Some time around
January 2009, Torres was hired by Annie
Garcia to pursue a personal injury case
against Wal-Mart as a result of injuries
that she suffered on December 18, 2008.
Torres did not file a lawsuit against WalMart until January 30, 2011. The scant
record before us does not reveal what, if
any, work Torres did on the case either
prior to or after filing the lawsuit. We
presume that Torres obtained Ms. Garcia’s
medical records and medical bills because
disciplinary counsel filed a summary of the
medical records and medical bills.1
{3} According to the summary Ms. Garcia
sustained a hematoma to the head, without
a concussion; bruising to the knee and
pelvis, without fractures; and the loss of a
tooth from her dentures when a box fell off
ARMANDO TORRES
Respondent
a shelf, knocking her to the ground. The
medical bills were summarized as follows:
Ambulance$650.56
Walker attachments
29.33
Lovelace charges
6,897.00
Denture replacement 650.00
Various doctor visits 2,218.00
TOTAL:$10,804.63
{4} We do not know whether this medical
information was ever conveyed to WalMart or if Wal-Mart was even aware of
the lawsuit. In any event, the lawsuit was
dismissed for failure to prosecute on May
28, 2013. Despite the dismissal, in June
2014 Torres advised Ms. Garcia through
her daughter, Linda Marquez, who had a
power of attorney to act for Ms. Garcia,
that he was negotiating a settlement of the
case with Wal-Mart for $70,000. Torres was
advised to continue the negotiations and
seek $120,000 if it was possible; otherwise
he was authorized to accept $70,000.
{5}Ms. Garcia filed a complaint against
Torres in August 2014 with the Disciplinary Board, alleging that Torres was not
communicating with them about the
status of their case. Torres responded to
the complaint on September 3, 2014 by
advising the Disciplinary Board that he
had finalized a settlement for Ms. Garcia
with Wal-Mart, but that he had not been
in contact with his client due to personal
circumstances. Indeed, on September 10,
2014, Torres had Ms. Garcia sign a release
ostensibly settling her lawsuit with WalMart for $70,000. Torres gave Ms. Garcia
$50,0002 from his personal retirement
funds, not from the non-existent settlement with Wal-Mart. Torres felt remorse
for what he described as “abberant [sic] behavior,” but he did not “have the courage”
to tell either Ms. Garcia or the Disciplinary
Board that her case had been dismissed, so
he set out to attempt to make her whole by
fabricating a settlement with Wal-Mart.
{6}Disciplinary counsel met with Torres after they became aware of the actual
facts of the case. Torres expressed genuine
remorse and agreed to enter into a conditional agreement admitting the allegations
and consenting to discipline. In addition to
admitting the facts described above, Torres admitted in the agreement that he had
violated the following Rules of Professional
Conduct:
1.R ule 16-101 [NMRA], by
failing to provide competent
representation to a client;
2.R ule 16-103 [NMRA], by
failing to represent his client
diligently;
3.R ule 16-104 [NMRA,] by
failing to communicate with
his client and by making false
statements to his client about
the status of her case;
4.Rule 16-302 [NMRA], by failing to expedite litigation;
5.R ule 16-801(A) [NMRA],
by knowingly making a false
statement of material fact in
connection with a disciplinary
matter; and
6.Rule 16-804(C) [NMRA], by
engaging in conduct involving
dishonesty, fraud, deceit or
misrepresentation.
{7}Torres also agreed that his discipline
should be a one-year suspension from the
practice of law pursuant to Rule 17-206(A)
(3) NMRA, deferred on the condition that
he pay the costs of these proceedings and
otherwise comply with the Rules of Professional Conduct, and that he receive a public
censure pursuant to Rule 17-206(A)(4).
Both the hearing committee and the Disciplinary Board ultimately recommended
that this Court accept the agreement. After
considering the record in this case and the
arguments before the Court, we unanimously agreed to adopt the Disciplinary
Board’s findings of fact, conclusions of law,
and recommended discipline.
1We assume that the medical records and medical bills were in files obtained from Torres because the disciplinary cost bill does
not seek reimbursement for obtaining records from the various medical providers who treated Ms. Garcia.
2Torres testified that the fee agreement with Ms. Garcia was for one-third of any recovery plus gross receipts tax. Under such a
structure Ms. Garcia would have received less than $50,000 from a $70,000 settlement.
30
Advance Opinions
{8}Although Torres’s intentional deception is troublesome, we are persuaded that
the discipline that has been agreed to and
recommended by the Disciplinary Board
is sufficient for the future protection of the
public. See In re Neundorf, 1989-NMSC052, ¶ 7, 108 N.M. 653, 777 P.2d 381 (attorney discipline “must rest solely upon
the steps necessary to insure the future
protection of the public, the reputation of
the profession, and the orderly administration of justice”). Torres’s neglect of his client was an isolated incidence of negligence
and lack of diligence which ordinarily
would warrant an admonition. See ABA
Standards for Imposing Lawyer Sanctions
§ 4.43 (1991). Torres has not had any prior
disciplinary complaints filed against him,
which is a significant mitigating factor.
ABA Standards for Imposing Lawyer Sanctions § 9.32(a) (1991).
{9}We are also persuaded that Torres’s
efforts to make his client whole by paying
her slightly more than what she would
have received had the settlement actually
been with Wal-Mart for $70,000 warrants
less than an outright suspension from the
practice of law for his intentional misrepresentations to his client and the Disciplinary Board. Whether the client has actually
been made whole is not an issue for us to
decide, and in any event, we cannot decide
the issue on the record before us. Much
depends on the underlying merits of Ms.
Garcia’s case against Wal-Mart. As we
stated in Encinias v. Whitener Law Firm,
P.A., 2013-NMSC-045, ¶ 8, 310 P.3d 611:
Under New Mexico law, the
plaintiff in a legal malpractice
suit must prove this loss by demonstrating by a preponderance of
the evidence that he or she would
have prevailed on the underlying
claim. Richardson v. Glass, 1992NMSC-046, ¶ 10, 114 N.M. 119,
835 P.2d 835 (“Plaintiff had the
burden of not only proving her
counsel’s negligence, but also
that she would have recovered at
trial in the underlying action.”);
George v. Caton, 1979-NMCA028, ¶¶ 46-47, 93 N.M. 370, 600
P.2d 822 (“In a malpractice action
. . . the measure of damages is the
value of the lost claims, i.e., the
amount that would have been
recovered by the client except for
the attorney’s negligence.”).
(Omission in original.)
{10} In this case, Torres did not seek a
release of his potential liability from Ms.
Garcia, and therefore Ms. Garcia may not
be barred from pursuing a lawyer negligence claim against Torres. Indeed, had
Torres sought to settle with Ms. Garcia
for his malpractice, he would have had
to comply with Rule 16-108(H) NMRA,
which provides:
H.Prospective malpractice liability limitation. A lawyer shall
not:
(1)
make an agreement prospectively limiting the lawyer’s
liability to a client for malpractice
unless the client is independently
represented in making the agreement; or
(2)
settle a claim or potential claim for such liability
with an unrepresented client or
former client unless that person
is advised in writing of the desirability of seeking and is given a
reasonable opportunity to seek
the advice of independent legal
counsel in connection therewith.
{11} However, the method Torres chose
to resolve the dispute was deceptive. Torres
should have advised Ms. Garcia in writing that her case had been dismissed and
that she should seek independent counsel
regarding a potential malpractice claim
against him. Ordinarily the attorney faced
with a potential malpractice claim would
notify his insurance carrier. However, in
this case Torres testified that the malpractice insurance he had at the time he was
employed by Ms. Garcia had lapsed, yet
he did not notify Ms. Garcia that he was
no longer insured, as required by Rule 16104(C). We take this opportunity to quote
Rule 16-104(C) in its entirety to emphasize
that this disclosure requirement is mandatory and will subject attorneys to discipline
for non-compliance.
C.
Disclosure of professional liability insurance.
(1) If, at the time of
the client’s formal engagement
of a lawyer, the lawyer does
not have a professional liability
insurance policy with limits of
at least one-hundred thousand
dollars ($100,000) per claim and
three-hundred thousand dollars
($300,000) in the aggregate, the
lawyer shall inform the client in
writing using the form of notice
prescribed by this rule. If during
the course of representation, an
insurance policy in effect at the
time of the client’s engagement
of the lawyer lapses, or is terminated, the lawyer shall provide
notice to the client using the form
prescribed by this rule.
(2) The form of notice
and acknowledgment required
under this Paragraph shall be:
NOTICE TO CLIENT
Pursuant to Rule 16-104(C)
NMRA of the New Mexico Rules
of Professional Conduct, I am
required to notify you that [“I”
or “this Firm”] [do not][does
not][no longer] maintain[s]
professional liability malpractice
insurance of at least one-hundred
thousand dollars ($100,000) per
occurrence and three-hundred
thousand dollars ($300,000) in
the aggregate.
_________________________
Attorney’s signature
CLIENT
ACKNOWLEDGMENT
I acknowledge receipt of the notice required by Rule 16-104(C)
NMRA of the New Mexico Rules
of Professional Conduct that [insert attorney or firm’s name] does
not maintain professional liability
malpractice insurance of at least
one-hundred thousand dollars
($100,000) per occurrence and
three-hundred thousand dollars
($300,000) in the aggregate.
_________________________
Client’s signature
(3) As used in this
Paragraph, “lawyer” includes a
lawyer provisionally admitted
under Rule 24-106 NMRA and
Rules 26-101 through 26-106
NMRA; however it does not include a lawyer who is a full-time
judge, in-house corporate counsel for a single corporate entity, or
a lawyer who practices exclusively
as an employee of a governmental
agency.
(4) A law yer shall
maintain a record of the disclosures made pursuant to this rule
for six (6) years after termination
of the representation of the client
by the lawyer.
(5) T h e m i n i mu m
limits of insurance specified by
this rule include any deductible
or self-insured retention, which
must be paid as a precondition
to the payment of the coverage
31
Advance Opinions
available under the professional
liability insurance policy.
(6) A lawyer is in violation of this rule if the lawyer or
the firm employing the lawyer
maintain a professional liability
policy with a deductible or selfinsured retention that the lawyer
knows or has reason to know
cannot be paid by the lawyer or
the lawyer’s firm in the event of a
loss.
Id.
{12} During oral argument, disciplinary counsel contended that this case is
comparable to Neundorf and justifies a
public censure. We agree. In Neundorf, attorney John Neundorf allowed the statute
of limitations to run on a client’s claim
by filing the lawsuit one day late. 1989NMSC-052, ¶ 3. Neundorf wrote to the
insurance adjuster on the case, enclosing
an unconfirmed copy of the complaint and
representing that it had been timely filed.
When the adjuster asked for a confirmed
copy, Neundorf used a copy machine to superimpose a filing stamp from an unrelated complaint that would have shown that
the complaint was filed within the statute
of limitations. Id. Neundorf also showed a
copy of the altered complaint to his client
to assure her that it was timely filed. Id.
Neundorf then made a settlement offer
to the insurance company, and after the
insurance company made a counteroffer
for half of the demand, he urged his client
32
to accept the counteroffer, even offering
to lower his fee to entice his client to accept. Id. ¶ 4. The client became concerned
about the case, and she retrieved a copy of
the complaint from the district court. Id.
When she discovered that the complaint
had been filed late, she consulted another
attorney. Id. ¶¶ 4-5. The new attorney and
the attorney for the insurance company
notified the Disciplinary Board of Neundorf ’s actions, and the Disciplinary Board
brought disciplinary proceedings against
him. Id. The hearing committee found that
had the client not discovered the alteration
and brought it to another attorney’s attention, Neundorf would have continued his
fraudulent efforts to settle the claim. Id. ¶
5. The hearing committee also found that
had the negotiations resulted in a settlement, the alteration would not have been
discovered and Neundorf would not have
acknowledged any wrongdoing. Id. The
hearing committee recommended that he
be suspended from the practice of law for
six months and placed on probation for an
additional six months as discipline. Id. ¶ 6.
{13} After oral argument, a Disciplinary
Board panel adopted all of the hearing
committee’s findings and conclusions,
but recommended that Neundorf receive
a public censure and be placed on conditional probation for a period of one year.
Id. The Board noted that Neundorf made
a substantial effort to reimburse his client for her losses by agreeing to pay her
$35,000 over a period of two years, and
had already paid $14,500 toward that debt.
Id. The Board also found that Neundorf
had shown honest remorse, and there was
no danger that his misconduct would be
repeated. Id.
{14} Both Neundorf and Torres were
experienced attorneys who had not previously had disciplinary complaints filed
against them. They each engaged in an
isolated incident of attorney negligence,
and ultimately attempted to make their clients whole. Both attorneys demonstrated
sincere remorse for their actions. Where
both attorneys failed miserably is in their
efforts to remedy their negligence by deception. We are persuaded by the record in
this case that a one-year deferred suspension with this public censure is adequate
to protect the public. Therefore, attorney
Armando Torres is hereby suspended from
the practice of law until December 2, 2016,
with the suspension deferred subject to the
conditions expressed in our order dated
December 2, 2015. This opinion shall
serve as Torres’s public censure, and he
shall pay costs in the amount of $415.27
to the Disciplinary Board consistent with
our order.
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
Advance Opinions
No. S-1-SC-35255 (filed June 2, 2016)
STATE OF NEW MEXICO,
Plaintiff-Petitioner,
v.
ROBERT GEORGE TUFTS,
MARCI BEYER, District Judge
HECTOR H. BALDERAS
Attorney General
KENNETH H. STALTER
Assistant Attorney General
for Petitioner
Opinion
Edward L. Chávez, Justice
{1} Defendant Robert Tufts, a male in his
late thirties, filmed himself masturbating,
saved the electronic image on a secure
digital (SD) memory card, inserted the
card into a cell phone, handed the cell
phone to a fifteen-year-old girl (Child)
with whom he had developed an intimate
but non-sexual relationship, and told
her there was a surprise on the phone
for her. Defendant was convicted of
criminal sexual communication with a
child in violation of NMSA 1978, Section
30-37-3.3 (2007). The Court of Appeals
reversed the conviction, holding that
“ ‘to send[,]’ when used to describe the
act of causing another person to receive
a physical object[,] evokes the notion
of a third-party carrier,” and therefore,
when Defendant hand-delivered obscene
electronic images to Child, he did not
“send” the images to her by means of an
electronic communication device. State
v. Tufts, 2015-NMCA-075, ¶¶ 15, 18, 355
P.3d 32, cert. granted, 2015-NMCERT-006.
For the reasons that follow, we reverse the
Court of Appeals and remand this case to
that Court for resolution of Defendant’s
remaining claims.
DISCUSSION
{2} Section 30-37-3.3(A) defines the crime
of criminal sexual communication with a
child as follows:
BENNETT J. BAUR
Chief Public Defender
KIMBERLY CHAVEZ COOK
Assistant Appellate Defender
for Respondent
Criminal sexual communication
with a child consists of a person
knowingly and intentionally
communicating directly with a
specific child under sixteen years
of age by sending the child obscene images of the person’s
intimate parts by means of an
electronic communication device
when the perpetrator is at least
four years older than the child.
An “ ‘electronic communication device’
means a computer, video recorder, digital
camera, fax machine, telephone, pager or
any other device that can produce an electronically generated image[.]” Section 3037-3.3(C)(1). Defendant only argues that
his conduct of placing an SD memory card
in a cell phone and handing that phone to
Child cannot constitute “sending” under
Section 30-37-3.3.
{3}This case presents a purely legal issue of statutory interpretation which we
review de novo. State v. Office of the Pub.
Def. ex rel. Muqqddin, 2012-NMSC-029,
¶ 13, 285 P.3d 622. “Our principal goal
in interpreting statutes is to give effect to
the Legislature’s intent.” Griego v. Oliver,
2014-NMSC-003, ¶ 20, 316 P.3d 865; see
also NMSA 1978, § 12-2A-18(A)(1) (1997)
(holding that if possible, we will construe a
statute or rule to “give effect to its objective
and purpose”). Rules of statutory construction are provided by both the Legislature
in the Uniform Statute and Rule Construction Act, see NMSA 1978, §§ 12-2A-1 to
-20 (1997), and by New Mexico case law.
{4}We must construe “sending” as it is
used in Section 30-37-3.3(A) to give effect
to the Legislature’s objective and purpose.
See State v. Ogden, 1994-NMSC-029, ¶ 34,
118 N.M. 234, 880 P.2d 845 (“A criminal
statute must be interpreted in light of the
harm or evil it seeks to prevent.”). We will
first turn to the plain language of Section
30-37-3.3(A) to guide our interpretation.
See § 12-2A-19. To be convicted of violating Section 30-37-3.3(A), a defendant
must knowingly and intentionally communicate directly with a specific child by
“sending the child obscene images of [the
defendant’s] intimate parts by means of an
electronic communication device . . . .” We
attribute the usual and ordinary meaning
to words used in a statute. State v. Melton,
1984-NMCA-115, ¶ 16, 102 N.M. 120, 692
P.2d 45. We often use dictionaries for guidance as to the usual and ordinary meaning
of words. See State v. Nick R., 2009-NMSC050, ¶ 18, 147 N.M. 182, 218 P.3d 868. We
agree with the Court of Appeals’ use of
the online Oxford Dictionaries to ascertain the ordinary meaning of “send” as to
“ ‘[c]ause to go or be taken to a particular
destination; arrange for the delivery of,
especially by mail[,]’ and secondarily, as
‘[c]ause (a message or computer file) to be
transmitted electronically[.]’ ” Tufts, 2015NMCA-075, ¶ 15 (alterations in original)
(quoting Oxford Dictionaries, http://www.
oxforddictionaries.com/us/definition/
american_ english/send (last visited May
13, 2016)). However, we disagree with the
Court of Appeals’ conclusion that “ ‘to
send’ ” requires transmitting an object to
another by means of a third-party carrier.
Tufts, 2015-NMCA-075, ¶ 15.
{5} Communicating directly with a child
by means of an electronic communication
device may occur through a third-party
carrier such as social media, internet forums and message boards, online filesharing services, text message, or email.
However, it may also occur by delivering
the electronic communication device containing the obscene images of the defendant directly to the child. It does not matter
whether the delivery was by the defendant
or a third-party carrier; someone had to
cause the electronic images to go or be
taken to a particular destination—in this
case, that someone was Defendant, and
the destination was Child. The history
and purpose of the statute support this
interpretation.
{6}The New Mexico Legislature enacted
Section 30-37-3.3 in 2007. However, this
33
Advance Opinions
was not its first legislative effort to enact a
law that criminalizes sexual communication with a child. In 1998, the Legislature
enacted a law intended to protect minors
from sexual communication and images in
the digital age by prohibiting dissemination of harmful materials via computer. See
1998 N.M. Laws, ch. 64, § 1 (codified as
NMSA 1978, Section 30-37-3.2). The 1998
version of Section 30-37-3.2(A) prohibited
a person, through
the use of a computer communications system that allows
the input, output, examination
or transfer of computer data or
computer programs from one
computer to another, to knowingly and intentionally initiate or
engage in communication with a
[child] when such communication in whole or in part depicts
actual or simulated nudity, sexual
intercourse or any other sexual
conduct.
1998 N.M. Laws, ch. 64, § 1. Notably,
with its specific reference to a “computer
communications system,” this crime prohibited “sending” images in the narrow
sense of electronic transmission. Shortly
thereafter, the Tenth Circuit Court of Appeals affirmed an injunction barring enforcement of Section 30-37-3.2(A) on the
grounds that it unconstitutionally violated
First Amendment rights to free speech
by burdening otherwise protected adult
communications on the Internet. See Am.
Civil Liberties Union v. Johnson, 194 F.3d
1149, 1160, 1164 (10th Cir. 1999) (ACLU).
The court concluded that the statute was
over broad because it could potentially
be applied to all communications on the
Internet since (1) it only required a general
knowledge that children might view the
material, and (2) it could not be read to
prohibit conduct targeting a specific child.
Id. at 1159. The Legislature subsequently
eliminated this crime through a 2005
amendment to the statute. 2005 N.M.
Laws, ch. 295, § 1.
{7}In 2007, the Legislature added Section 30-37-3.3 to the Act, which defined
criminal sexual communication with a
child. 2007 N.M. Laws, ch. 67, § 1. We
presume that “the legislature acted with
34
full knowledge of relevant statutory and
common law.” State ex rel. Quintana v.
Schnedar, 1993-NMSC-033, ¶ 4, 115 N.M.
573, 855 P.2d 562. Therefore, we assume
that the Legislature drafted the language
of Section 30-37-3.3(A) with the constitutional holding by ACLU in mind. Consequently, Section 30-37-3.3(A) requires
a person to “knowingly and intelligently
communicat[e] directly with a specific child
. . . .” (Emphasis added.) In contrast to the
1998 version of Section 30-37-3.2, Section
30-37-3.3(A)’s additional focus on direct
communication targeting a specific child
could seemingly be achieved through an
electronic transmission or by directly handing the child an electronic communication
device containing forbidden material. This
statutory history provides us with important context as to the meaning of “sending”
in Section 30-37-3.3(A), but we also look to
the purpose of the statute for further guidance. See State v. Cleve, 1999-NMSC-017,
¶ 8, 127 N.M. 240, 980 P.2d 23.
{8}The elements of the offense of criminal sexual communication with a child
reveal the purpose of Section 30-373.3(A), which is to protect children under
sixteen from being targeted by an adult
and provided with obscene images of the
adult’s intimate parts on a device that can
produce, store, or distribute the electronic
images. The Legislature enacted Article 37
of the Criminal Code, “Sexually Oriented
Material Harmful to Minors,” because
“children do not have the judgment necessary to protect themselves from harm . . . .”
NMSA 1978, § 30-37-9 (1983). The harm
targeted by Section 30-37-3.3(A) consists
of an adult attempting to pique a specific
child’s prurient interest in the adult by directly communicating to the child obscene
electronic images of the adult. See NMSA
1978, § 30-37-1(C), (F)(1) (1973) (defining
what sexually oriented material is harmful
to minors as including an act of “masturbation” that “predominantly appeals to the
prurient . . . interest” of a minor). Whether
a digital camera, a video recorder, or a cell
phone is handed directly to a child or an
image is electronically transmitted to one
of those devices, the effect of the conduct
and the resulting harm to the child—access
to obscene electronically generated images
via an electronic communication device—
is the same. Cf. Ogden, 1994-NMSC-029,
¶ 34 (discussing the purpose of a statute
meant to deter killings of law enforcement
officers and applying the statute to the
killing of Community Service Officers in
order to ensure that the evil the statute was
enacted to deter was deterred). We cannot confine the definition of “sending” to
encompass only electronic transmissions
because doing so would frustrate the purpose of the legislation.
{9}In this case, Defendant gave Child at
least two cell phones over several months,
which they used to text or talk to each other on a daily basis. As their non-sexual relationship progressed, Defendant recorded
himself nude and masturbating, saved the
files to an SD memory card, and placed the
SD card in a cell phone which he handed to
Child, exclaiming that there was a surprise
for her on the phone. The communication
could not have been more direct, and it was
achieved through a telephone or a device
capable of “produc[ing] an electronically
generated image[,]” which was specifically
defined by the Legislature as an “ ‘electronic communication device.’ ” Section
30-37-3.3(C)(1). Defendant handed the
cell phone with the memory card that he
inserted into the phone to Child, and it was
with that cell phone that Child produced
the obscene electronically generated image
of Defendant which he intended Child to
view. Defendant’s argument that he is not
guilty of violating Section 30-37-3.3(A)
because he did not transmit the obscene
electronic image to Child through a thirdparty carrier is without merit.
CONCLUSION
{10} We reverse the Court of Appeals’
determination that Defendant did not
“send” the pictures of himself under Section 30-37-3.3(A) and remand the case to
the Court of Appeals for consideration of
his other claims.
WE CONCUR:
Advance Opinions
No. S-1-SC-34400 (filed June 13, 2016)
STATE OF NEW MEXICO,
Plaintiff-Petitioner,
v.
EDWARD ARMIJO,
CHARLES W. BROWN, District Judge
HECTOR H. BALDERAS
Attorney General
MARGARET E. MCLEAN
JAMES W. GRAYSON
CORINNA LASZLO-HENRY
for Petitioner
Opinion
Charles W. Daniels, Chief Justice
{1}Defendant Edward Armijo was convicted in the Bernalillo County Metropolitan Court of driving while intoxicated
(DWI). His on-record appeals alleging
trial error were decided by both the Second
Judicial District Court, which affirmed
his conviction, and the Court of Appeals,
which reversed. State v. Armijo, 2014NMCA-013, ¶ 1, 316 P.3d 902. We granted
certiorari to consider the State’s arguments
that the Court of Appeals has no appellate
jurisdiction over a district court’s decision
in an on-record appeal from metropolitan
court and that a defendant has no right to
that secondary record review. Addressing
only these two issues and declining to
conduct a third appellate review of the
underlying merits of this case, we hold
that the Legislature has vested the Court of
Appeals with appellate jurisdiction over a
district court’s on-record appellate review
of a metropolitan court proceeding and
has provided an aggrieved party the right
to such an appeal.
I.BACKGROUND
{2} The appellate process in New Mexico
has evolved in tandem with our court
system, and an overview of the historical
BENNETT J. BAUR
Chief Public Defender
VICKI W. ZELLE
Assistant Appellate Defender
for Respondent
development of our courts provides helpful background for understanding the
issues in this case. The structure of New
Mexico’s judicial system can be traced
back to prestatehood laws. See State v. Ball,
1986-NMSC-030, ¶¶ 17-21, 104 N.M. 176,
718 P.2d 686 (describing the right of appeal
prior to the adoption of the New Mexico
Constitution).
A.Appellate Review Under the
Preterritorial Kearny Code
{3}Following his 1846 conquest during
the Mexican-American war of the area that
was to be officially organized in 1850 as the
United States Territory of New Mexico,
General Stephen W. Kearny promulgated
the Kearny Code of Laws, Laws for the
Government of the Territory of New Mexico
(Kearny Code). The Kearny Code created a
provisional government and established a
temporary judicial system that combined
features of judicial structures in other
states with those of the preexisting Spanish
and Mexican systems. See Kearny Code
of Laws, Letter of General Kearny to the
Adjutant General (Sept. 22, 1846); Robert J.
Tórrez, Myth of the Hanging Tree 2 (2008).
{4} The judicial structure consisted of one
superior court to serve as a supreme court,
see Kearny Code, Courts and Judicial Powers, §§ 1, 8, three circuit courts to exercise
general criminal and civil jurisdiction,
see id. §§ 2, 18(A)-(B), one prefect in each
county to handle small probate matters, see
id. §§ 19, 21, and as many as four alcaldes
in each county to exercise limited jurisdiction in small civil and criminal cases, see
id. §§ 23-24. The roles of the prefects and
alcaldes were analogous to those of our
courts of limited jurisdiction today. See id.
§ 21 (setting forth the exclusive original
jurisdiction of the prefects over probate
actions and in suits against executors or
administrators with a demand of one
hundred dollars or less and establishing
the appellate jurisdiction of the prefects
from the judgments of alcaldes where the
amount in controversy was less than fifty
dollars); § 24 (setting forth the jurisdiction
of alcaldes over small claims in certain
types of civil cases); Kearny Code, Crimes
and Punishments, art. III, § 11 (setting
forth the jurisdiction of alcaldes over
certain minor criminal offenses); see also
Jaremillo v. Romero, 1857-NMSC-007, ¶
13, 1 N.M. 190 (observing that the alcaldes
of the Kearny Code had been “substantially
justices of the peace”).
{5} The general jurisdiction circuit courts
had “appellate jurisdiction from the judgments and orders of the prefects and alcaldes in all cases not prohibited by law” and
original jurisdiction in all criminal and
civil cases that were “not . . . cognizable
before the prefects and alcaldes.” Kearny
Code, Courts and Judicial Powers, § 18(B)(C). The only exception to the right to
appeal to the circuit court was a provision
that an appellate judgment of a prefect on
review of an alcalde’s decision in a civil case
where the amount in controversy was less
than fifty dollars was “final and conclusive.”
Id. § 21. The court of last resort, the superior court, had “appellate jurisdiction in all
cases, both civil and criminal, which may
be determined in the circuit court.” Id. § 8.
It decided those appeals on review of the
record. See id. § 14 (requiring the superior
court on review of the circuit court record
to “award a new trial, reverse or affirm the
judgment of the circuit court or give such
other judgment . . . agreeable to the law”).
{6}There was no statutory provision or
judicial precedent indicating that decisions
of circuit courts on appeal from actions of
the inferior courts were final or otherwise
exempted from superior court review. Cf.
id. § 9 (“Every person aggrieved by any
judgment or decision of any circuit court
in any civil case may . . . appeal to the
superior court.”); Kearny Code, Practice
of Law in Criminal Cases, § 23 (“In all
cases of final judgment rendered upon any
35
Advance Opinions
indictment an appeal to the superior court
shall be allowed . . . .”).
B.Appellate Review Under Territorial
Statutes
{7} The Organic Act of 1850 that officially
established the Territory of New Mexico
largely retained the judicial structure of
the Kearny Code but renamed the courts,
creating a supreme court to replace the
superior court, three district courts to
replace the circuit courts, justices of the
peace to replace the alcaldes, and probate
courts to replace the prefects. See Organic
Act Establishing the Territory of New
Mexico, Act of September 9, 1850, 9 Statutes at Large 446, ch. 49 (Organic Act); id.
§ 10, 9 Statutes at Large at 449; Arellano v.
Chacon, 1859-NMSC-002, ¶¶ 7-8, 1 N.M.
269 (stating that the offices of prefect and
alcalde described in the Kearny Code were
succeeded by the probate judges and the
justices of the peace upon the organization of the territorial government under
the Organic Act). The jurisdiction of the
courts was to be set forth by law, with certain limitations applicable to justices of the
peace, and appeals were guaranteed from
the final decisions of the district courts to
the Supreme Court. Organic Act § 10, 9
Statutes at Large at 449-50.
{8} The right to an appeal from the justice
of the peace courts was granted first by
territorial statute, which “gave the right
to appeal to ‘[a]ny person aggrieved by
any judgment rendered by any justice.’”
Ball, 1986-NMSC-030, ¶ 17 (alteration in
original) (quoting Law of January 9, 1852,
codified at 1856 N.M. Rev. Stat., ch. 12, art.
4, § 101) (citing the Kearny Code). These
appeals were to be taken to the district
court for trial de novo. Id. ¶¶ 17-18 (citing
Act of January 12, 1853, codified at 1865
N.M. Rev. Stat., ch. 29, § 14, codified at
NMSA 1897, § 2897; Act of January 13,
1876, codified at 1875-76 N.M. Laws, ch.
27, § 74, codified at NMSA 1897, § 3305).
{9}The territorial statutes never limited
the right to appeal to the Supreme Court
from decisions of the general jurisdiction
courts on appeal from courts of limited
jurisdiction. In fact, reported opinions
throughout the territorial period reflect
that such appeals frequently were entertained and decided by the Supreme Court
without any party ever questioning the
right to such an appeal. Examples include
appeals of district court reviews of civil
cases originating in the probate courts,
see Chaves v. Perea, 1884-NMSC-006, ¶
1, 3 N.M. 89, 2 P. 73; Spiegelberg v. Mink,
1859-NMSC-007, ¶ 1, 1 N.M. 308, appeals
36
of district court reviews of civil cases originating in justice of the peace courts, see
Rodey v. Travelers’ Ins. Co., 1886-NMSC006, ¶ 1, 3 N.M. 543, 9 P. 348; Ruhe v.
Abren, 1857-NMSC-013, ¶ 1, 1 N.M. 247,
and appeals of district court reviews of
criminal cases originating in justice of the
peace courts, see Perkins v. City of Roswell,
1911-NMSC-022, ¶ 1, 16 N.M. 185, 113 P.
609; Guyse v. Territory, 1893-NMSC-022,
¶ 1, 7 N.M. 228, 34 P. 295, superseded by
statute on other grounds as recognized in
State v. Jordi, 1918-NMSC-095, ¶ 4, 24
N.M. 426, 174 P. 204.
C. Appellate Review of Cases Originating
in Early-Statehood Justice Courts
{10} When the New Mexico Constitution
was adopted in conjunction with our admission to the Union in 1912 as the fortyseventh state, it continued the practice of
the territorial court system by providing
that “[a]ppeals shall be allowed in all cases
from the final judgments and decisions
of the probate courts and justices of the
peace to the district courts, and in all such
appeals trial shall be had de novo unless
otherwise provided by law.” N.M. Const.
art. VI, § 27 (1911, amended 1966). By that
time, “the justice of the peace statutes had
been on the books, virtually unaltered, for
thirty-five years, and had existed in some
form throughout the Territory’s history.”
Ball, 1986-NMSC-030, ¶ 20. The adoption
of the New Mexico Constitution did not
change previously existing law providing
the right to de novo appeal in the district
court. The justice of the peace statutes
codified at “NMSA 1897, Sections 3305
[and] 2897, . . . reappeared unaltered in
NMSA 1915, Sections 3220 [and] 4529
. . . respectively” and similarly “appeared
in the 1929, 1941, and 1953 compilations.”
Ball, 1986-NMSC-030, ¶ 21 & n.2; see
NMSA 1953, § 36-18-15 (1876); NMSA
1941, § 38-1815 (1876); NMSA 1929, §
79-516 (1876); see also 1875-76 N.M. Laws,
ch. 27, § 117 (“In all cases before a justice
of the peace, in which judgment shall be
rendered against any party, either party
may take his appeal to the district court.”),
§ 120 (“All causes removed into the district
court, in pursuance of the [appeal,] shall
be tried de novo.”).
{11} The Constitution further provided
that “[t]he appellate jurisdiction of the
supreme court shall be coextensive with
the state, and shall extend to all final judgments and decisions of the district courts,
and said court shall have such appellate
jurisdiction of interlocutory orders and
decisions of the district courts as may be
conferred by law.” N.M. Const. art. VI, § 2
(1911, amended 1965). As with the territorial statutes, no constitutional provision or
statute excepted a district court’s decision
on review of a lower court decision from
review by the appellate court. The consistent and unquestioned practice after statehood continued to allow a further appeal
to the Supreme Court or, after its creation
in 1966 and gradual expansion of appellate jurisdiction, to the Court of Appeals.
See, e.g., State v. Coats, 1913-NMSC-082,
¶ 1, 18 N.M. 314, 137 P. 597 (reviewing
a criminal action originating in a justice
of the peace court); Miera v. Akers, 1919NMSC-064, ¶¶ 1-2, 25 N.M. 508, 184 P.
817 (reviewing a civil action originating
in a probate court); Anthony Doll & Co.
v. Hogan, 1936-NMSC-003, ¶ 1, 40 N.M.
55, 53 P.2d 649 (reviewing a civil action
originating in a justice of the peace court);
Levers v. Houston, 1945-NMSC-017, ¶¶
1-2, 49 N.M. 169, 159 P.2d 761 (reviewing a civil action originating in a probate
court); State v. Booher, 1967-NMCA-004,
¶ 1, 78 N.M. 76, 428 P.2d 478 (reviewing
a criminal action originating in a justice
of the peace court); Ransom v. Little (In
re Will of Reinhard), 1974-NMSC-052, ¶¶
1-2, 86 N.M. 347, 524 P.2d 519 (reviewing a
civil action originating in a probate court).
D.Replacement of Justices of the
Peace with Magistrate Courts
{12} In 1966, Article VI, Section 27 of the
New Mexico Constitution was amended to
replace “justices of the peace” with “other
inferior courts.” Shortly thereafter the
Legislature statutorily abolished justice of
the peace offices and replaced them with
magistrate courts. NMSA 1978, § 35-1-1
(1968) (establishing the magistrate court
and specifying that it is not a court of
record); NMSA 1978, § 35-1-38 (1968)
(abolishing the office of justice of the peace
and transferring all jurisdiction, powers,
and duties conferred upon justices of the
peace to the magistrate court).
{13} The statutory provisions for appeal
from the magistrate courts have continued
to provide for a de novo appeal to the district court without any language limiting
the right to further appellate review of the
district court’s decision. See NMSA 1978,
§ 35-13-1 (1975) (providing the right to
appeal any judgment or final order of the
magistrate court to the district court);
NMSA 1978, § 35-13-2(A) (1996) (providing that the appealed case shall be tried de
novo in the district court). And as before,
appeals routinely have been taken to the
Court of Appeals after de novo appeal in
Advance Opinions
district court. See, e.g., State v. Hubble,
2009-NMSC-014, ¶¶ 1, 36, 146 N.M. 70,
206 P.3d 579 (affirming on certiorari a
DWI conviction in magistrate court affirmed by trial de novo in district court
and affirmed on appeal to the Court of
Appeals); State v. DeBaca, 1977-NMCA089, ¶¶ 1, 40, 90 N.M. 806, 568 P.2d 1252
(reversing on appeal a DWI conviction in
magistrate court affirmed by trial de novo
in district court).
E.Creation of Metropolitan Court as
a Specialized Magistrate Court
{14} The Legislature partially altered the
magistrate court system in 1979 when it
created the metropolitan court as a specialized magistrate court to perform the
functions of magistrate, municipal, and
small claims courts for New Mexico’s most
populous counties. See NMSA 1978, § 348A-1 (1979, amended 2010) (establishing
a metropolitan court in counties with
a population greater than two hundred
thousand persons and, in 2010, raising
the population threshold to two hundred
fifty thousand, making Bernalillo County
the only county to qualify); NMSA 1978,
§ 34-8A-3(A) (1979, as amended 2001)
(specifying metropolitan court jurisdiction and venue).
{15} The metropolitan court is still a
court of limited jurisdiction inferior to
the district courts, see NMSA 1978, § 348A-2 (1980), but unlike other magistrate
courts it is a court of record in certain
instances, see NMSA 1978, § 34-8A-6(B)(C) (1993) (specifying the metropolitan
court as a court of record in civil actions
and in criminal actions involving DWI or
domestic violence). While the New Mexico
Constitution provides that district courts
have “appellate jurisdiction of all cases
originating in inferior courts and tribunals
in their respective districts,” N.M. Const.
art. VI, § 13, an appeal from the metropolitan court must be tried de novo in the
district court only when the judgment
appealed from is not one for which the
metropolitan court is a court of record. See
§ 34-8A-6(B)-(D); State v. Wilson, 2006NMSC-037, ¶¶ 11, 16, 140 N.M. 218, 141
P.3d 1272 (holding that a defendant was
entitled to trial de novo in the district court
because his metropolitan court conviction did not involve domestic violence).
When the metropolitan court judgment is
rendered in an action for which the court
is of record, “the district court acts as a
typical appellate court, with the district
judge simply reviewing the record of the
metropolitan court trial for legal error.”
State v. Trujillo, 1999-NMCA-003, ¶¶ 2, 4,
126 N.M. 603, 973 P.2d 855 (conducting
appellate review of a criminal case that had
been tried in the metropolitan court and
affirmed on appeal to the district court).
{16} In spite of these changes and in the
absence of statutes or court rules to the
contrary, metropolitan court judgments
reviewed on appeal in the district court,
whether reviewed on-record or de novo,
have continued to be further appealed
both by defendants and by the State from
the district court to the Court of Appeals.
See, e.g., State v. Sims, 2010-NMSC-027,
¶¶ 2, 39, 148 N.M. 330, 236 P.3d 642
(reviewing a Court of Appeals decision
affirming a district court affirmance of
the metropolitan court DWI conviction);
Wilson, 2006-NMSC-037, ¶¶ 2-4 (reviewing a Court of Appeals decision reversing a
district court on-record affirmance of metropolitan court convictions for criminal
trespass and harassment); State v. Trevizo,
2011-NMCA-069, ¶¶ 1-4, 150 N.M. 158,
257 P.3d 978 (reviewing a district court
reversal of the metropolitan court DWI
conviction).
{17} The jurisdiction of the Court of
Appeals to review cases such as those
apparently had never been questioned
until the recent series of challenges by the
New Mexico Attorney General. See, e.g.,
State v. Carroll, 2015-NMCA-033, ¶¶ 1,
12, 346 P.3d 372 (denying the State’s motion to dismiss the defendant’s appeal for
lack of Court of Appeals jurisdiction to
review district court on-record reviews of
metropolitan court DWI convictions and
for lack of the right to appeal such cases),
cert. granted, 2015-NMCERT-001; State
v. Cahall, No. 32,969, mem. op. ¶ 1 (N.M.
Ct. App. Nov. 12, 2013) (nonprecedential)
(same), cert. denied, 2014-NMCERT-001.
{18} We granted the New Mexico Attorney General’s petitions for writ of
certiorari in this case and several others to
address the important issues of appellate
jurisdiction and the right to appeal. After
considering the briefs and oral arguments
and researching the issues further, we entered a dispositional order concluding that
the Court of Appeals has secondary appellate jurisdiction to review a district court’s
rulings on review of criminal actions
originating in the metropolitan court. See
State v. Armijo, No. 34,400, dispositional
order (N.M. Sup. Ct. Aug. 14, 2015). We
further concluded that a party aggrieved
by a district court order in an on-record
appeal of a metropolitan court conviction
has a right to review in the Court of Ap-
peals. Id. We now issue this precedential
opinion to set forth our analysis of the
issues.
II.DISCUSSION
A. Standard of Review
{19} “A court’s jurisdiction derives from a
statute or constitutional provision.” State v.
Rudy B., 2010-NMSC-045, ¶ 14, 149 N.M.
22, 243 P.3d 726. The right to appeal is also
a matter of substantive law created by constitutional or statutory provision. See City
of Las Cruces v. Sanchez, 2007-NMSC-042,
¶ 10, 142 N.M. 243, 164 P.3d 942. “We review issues of statutory and constitutional
interpretation de novo.” Bank of New York
v. Romero, 2014-NMSC-007, ¶ 52, 320 P.3d
omitted).
{20} “[T]he rules of statutory construction apply equally to constitutional construction.” State v. Boyse, 2013-NMSC-024,
¶ 8, 303 P.3d 830 (internal quotation marks
and citation omitted). “[W]e examine the
plain language of the statute as well as
the context in which it was promulgated,
including the history of the statute and the
object and purpose the Legislature sought
to accomplish.” State v. Nick R., 2009NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d
omitted). “The plain meaning rule requires
that [we give statutes] effect as written
without room for construction unless the
language is doubtful[ or] ambiguous[]
or an adherence to the literal use of the
words would lead to injustice, absurdity or
contradiction, in which case” we construe
“the statute . . . according to its obvious
spirit or reason.” Boyse, 2013-NMSC-024,
¶ 9 (internal quotation marks and citation
omitted).
B.Appellate Jurisdiction of the Court
of Appeals to Review District Court
Decisions from Both On-Record
and De Novo Reviews of Criminal
Actions Originating in
Metropolitan Court
{21} The New Mexico Constitution
grants appellate jurisdiction to the Court
of Appeals “as may be provided by law.”
N.M. Const. art. VI, § 29. When not specified in the Constitution, jurisdiction “as
may be provided by law” must be granted
by statute. See State v. Smallwood, 2007NMSC-005, ¶ 6, 141 N.M. 178, 152 P.3d
821 (“The phrase ‘as may be provided by
law’ means that our Constitution or Legislature must vest us with appellate jurisdiction . . . .” (citation omitted)). In NMSA
1978, Section 34-5-8(A)(3) (1983), the
Legislature granted the Court of Appeals
37
Advance Opinions
jurisdiction to review on appeal “criminal
actions, except those in which a judgment
of the district court imposes a sentence of
death or life imprisonment.”
{22} This Court has recognized that the
broad language of Section 34-5-8(A)(3)
provides the Court of Appeals with “subject matter jurisdiction over all criminal
appeals, except those that result in a
life or death sentence.” State v. Vasquez,
2014-NMSC-010, ¶ 17, 326 P.3d 447. The
plain language of the statute supports
this reading. See Black’s Law Dictionary
37 (10th ed. 2014) (defining criminal
action as “[a]n action instituted by the
government to punish offenses against the
public”). Criminal trials in metropolitan
court are criminal actions prosecuted by
the government. An on-record appeal in
district court is a continuation of the same
“criminal action” begun in metropolitan
court. See Allen v. LeMaster, 2012-NMSC001, ¶¶ 17-18, 267 P.3d 806 (holding that
habeas corpus proceedings “are in every
real sense a continuation of a defendant’s
criminal case”). This interpretation is
in accordance with the history of New
Mexico’s appellate procedure, in which
cases originating in the limited-jurisdiction courts have consistently been given
further appellate review after an initial
appeal to the district court.
{23} The specific constitutional grant of
appellate jurisdiction to the district court
from judgments of limited-jurisdiction
courts prevents direct appeals from metropolitan court and other lower tribunals to
the Court of Appeals. See N.M. Const. art.
VI, § 13 (“The district court shall have . . .
appellate jurisdiction of all cases originating in inferior courts and tribunals in their
respective districts, and supervisory control over the same.”); United Nuclear Corp.
v. Fort, 1985-NMCA-049, ¶¶ 7, 12, 102
N.M. 756, 700 P.2d 1005 (holding that the
Court of Appeals did not have jurisdiction
to directly review a licensing action under
the Section 34-5-8(A)(6) general grant of
jurisdiction to review decisions of administrative agencies because the district court
had been specifically granted jurisdiction
to review such actions). But Section 34-5-8
does grant successive appellate jurisdiction
to the Court of Appeals because it contemplates review of cases originating in the
limited-jurisdiction courts or otherwise
first reviewed by a district court. See § 345-8(A)(5) (granting the Court of Appeals
jurisdiction to review “actions for violation
of municipal or county ordinances where
a fine or imprisonment is imposed,” with
38
such actions commonly originating in
limited-jurisdiction courts); § 34-5-8(A)
(6) (granting the Court of Appeals jurisdiction to review, on certiorari, decisions
of administrative agencies first reviewed
in the district court under NMSA 1978,
Section 39-3-1.1(E) (1999)). In the absence
of any constitutional or statutory language
carving out an exception for on-record
appeals, we hold that this successive jurisdiction includes review of both on-record
and de novo appeals decided by the district
court.
C.Right of a Party to Appeal from a
District Court’s On-Record and De
Novo Reviews of Criminal Actions
Originating in Metropolitan Court
{24} To invoke the jurisdiction of the
Court of Appeals, the right to take an appeal must be granted by the Constitution
or by statute. See State v. Chacon, 1914NMSC-079, ¶ 7, 19 N.M. 456, 145 P. 125
(“Appeals are creatures of statute, and,
when not guaranteed by constitutional
provisions, or specifically provided for by
statute, no power of review is afforded to
a litigant in a cause determined by an inferior court.”), superseded on other grounds
by constitutional amendment, N.M. Const.
art. VI, § 2, as recognized by State v. Griffin,
1994-NMSC-061, ¶ 3 n.2, 117 N.M. 745,
877 P.2d 551.
{25} The New Mexico Constitution
expressly establishes the right to appeal
a decision of the metropolitan court. See
N.M. Const. art. VI, § 27 (“Appeals shall
be allowed in all cases from the final judgments and decisions of the probate courts
and other inferior courts to the district
courts, and in all such appeals, trial shall
be had de novo unless otherwise provided
by law.”). This provision confers a right to
appeal that may not be limited by either
the Legislature or this Court, see Sanchez,
2007-NMSC-042, ¶ 16, but constitutionally guarantees only an appeal to the district
court without addressing a right to further
appeal from the district court’s appellate
decision. Neither does the “absolute right
to one appeal” found in Article VI, Section
2 of the New Mexico Constitution provide
that right. See Sanchez, 2007-NMSC-042, ¶
9 (“Article VI, Section 2 only applies to cases originating in district court, not to cases
originating in courts of limited jurisdiction.”); VanderVossen v. City of Espanola,
2001-NMCA-016, ¶¶ 10-12, 130 N.M. 287,
24 P.3d 319 (“It is from the district court’s
exercise of original jurisdiction, therefore,
that an aggrieved party is guaranteed ‘the
absolute right to one appeal’ in the manner
prescribed by law, whether to the Supreme
Court or the Court of Appeals. Nothing
in [A]rticle VI, [S]ection 2 indicates that
an aggrieved party is guaranteed an appeal from the district court acting in its
appellate jurisdiction, or an appeal from
an appeal.” (quoting N.M. Const. art. VI,
§ 2)).
{26} Instead, the right to appeal a district
court’s disposition of an on-record appeal
from metropolitan court is statutory. “In
any criminal proceeding in district court
an appeal may be taken by the defendant
to the supreme court or court of appeals,
as appellate jurisdiction may be vested by
law in these courts[,] . . . from the entry of
any final judgment.” NMSA 1978, § 39-33(A)(1) (1972). “Section 39-3-3 recognizes
the constitutional right . . . to appeal” but
does not merely codify that right. State v.
Alvarez, 1991-NMCA-115, ¶ 6, 113 N.M.
82, 823 P.2d 324. In addition, it grants a
statutory right to appeal under certain circumstances where no constitutional right
to appeal exists. See id. ¶ 10 (holding that
the State’s right to an interlocutory appeal
from a suppression order is a statutory
right granted by Section 39-3-3(B)(2),
not a constitutional right, and that while
appellate review is mandatory it may be
conditioned on compliance with statutory
time limits). Our history demonstrates that
these certain circumstances include the
district court’s entry of final judgment on
an appeal from an inferior court.
{27} Historically, because New Mexico’s
courts of limited jurisdiction were not
courts of record, appeals taken from these
courts were necessarily heard as trials de
novo. See Ball, 1986-NMSC-030, ¶ 18 (describing prestatehood justice of the peace
statutes that provided the right of appeal
to any person aggrieved by a judgment and
required all appeals to be tried de novo).
This is still the case with New Mexico’s municipal and traditional magistrate courts
today. See § 35-1-1 (“The magistrate court
is not a court of record.”); § 35-13-2(A)
(“Appeals from the magistrate courts shall
be tried de novo in the district court.”);
NMSA 1978, § 35-15-10 (1959) (“All trials upon appeals by a defendant from the
municipal court to the district court for
violations of municipal ordinances shall
be de novo . . . .”).
{28} A de novo appeal is not an ordinary
appeal, where the decision of the lower
court is reviewed by a superior court,
but is more accurately described as “the
removal of a cause from the inferior to a
superior court.” Ball, 1986-NMSC-030, ¶
Advance Opinions
15. De novo appeals are “tried anew . . .
on their merits, as if no trial had been
had below . . . .” NMSA 1978, § 39-3-1
(1955). Article VI, Section 27 of the New
Mexico Constitution restated the existing
right of appeal from the territorial inferior
courts. See Ball, 1986-NMSC-030, ¶¶ 2021 (emphasizing that the framers of the
Constitution did not intend to change
the existing right of appeal). This provision mandated that these appeals go “to
the district courts,” as the appropriate
courts for new trials, rather than to the
Supreme Court for appellate review. See
N.M. Const. art. VI, § 27 (1911). After
trial de novo, the decision of the district
court could be appealed to this Court or,
upon its creation, to the Court of Appeals
on the district court record. See, e.g., City
of Portales v. Shiplett, 1960-NMSC-095,
¶¶ 1, 9, 67 N.M. 308,355 P.3d 126 (affirming a district court judgment on de
novo appeal from the justice of the peace
court); State v. Silva, 1974-NMCA-072, ¶
1, 86 N.M. 543, 525 P.2d 903 (affirming
a district court judgment on de novo appeal from the magistrate court). Although
technically a second exercise of appellate
jurisdiction, this record review is still
included within the statutory right of
appeal granted by Section 39-3-3 because
the district court’s decision on the de novo
appeal results in a final judgment after
trial, from which further appeal on the
record is necessary to guard against trial
error.
{29} The limited-jurisdiction court system that required de novo trials on appeal
to the district court began to change with
the 1979 creation of the metropolitan
court. See 1979 N.M. Laws, ch. 346, §§
1-3 (establishing and describing the metropolitan court); see also § 34-8A-6 (1979).
In addition to expanded jurisdiction, metropolitan courts were distinct from other
inferior courts in that metropolitan court
judges were required to be members of the
bar licensed to practice law in New Mexico,
1979 N.M. Laws, ch. 346, § 4(B), and in
that the metropolitan court was designated
as a court of record in civil actions “to the
extent specified by supreme court rule,” id.
§ 6(B). The Legislature charged this Court
with adopting “simple procedures for the
just, speedy and inexpensive determination of any metropolitan court action.” Id.
§ 6(A). Appeals from the metropolitan
court, both criminal and civil, were to be
heard de novo in the district court “unless
otherwise specified by supreme court rule.”
Id. § 6(C).
{30} In the next year, the Legislature
amended Section 34-8A-6 to mandate
that the metropolitan court was a court of
record with respect to civil actions, rather
than leaving that status to be specified by
rule. See 1980 N.M. Laws, ch. 142, § 4(B). It
provided that while criminal appeals to the
district court would still “be de novo unless otherwise specified by supreme court
rule,” for civil actions tried on the record
in the metropolitan court, “the manner
and method for such appeal shall be set
forth by rules of the supreme court.” Id.
§ 4(C)-(D). The Legislature also required
that “[a]ppeals from the district court shall
be allowed as in other civil actions.” Id. §
4(D).
{31} The 1993 amendments to Section
34-8A-6 resulted in our current statute
in which the Legislature expanded the
metropolitan court’s authorization as a
court of record to include two criminal
actions, those involving DWI and those
involving domestic violence. See 1993
N.M. Laws, ch. 67, § 1(C)-(D); § 34-8A6(C). Our Constitution still mandates
that these appeals be taken to the district
court. See N.M. Const. art. VI, § 27 (“Appeals shall be allowed in all cases from
the final judgments and decisions of the
probate courts and other inferior courts to
the district courts . . . .”). Accordingly, the
Legislature provided that both on-record
and de novo appeals would continue to be
taken to the district court. See § 34-8A6(C) (providing that a person appealing
“a judgment rendered by the metropolitan
court in a criminal action involving [DWI
or] domestic violence may appeal to the
district court”); § 34-8A-6(D) (providing that a person appealing “a judgment
rendered by the metropolitan court in a
criminal action, other than [a DWI] or
domestic violence action, may appeal to
the district court” where “[t]he appeal
shall be de novo”).
{32} Significantly, the Legislature made
no changes to the statutes governing appeals from decisions of the district court
reviewing metropolitan court on-record
criminal cases. Section 39-3-3(A) continues to provide that “[i]n any criminal
proceeding in district court an appeal may
be taken by the defendant to the supreme
court or court of appeals, as appellate
jurisdiction may be vested by law in these
courts.” This statute does not distinguish
the appeal of a judgment in a criminal case
originating in the district court from one
originating in the metropolitan court, nor
does it distinguish the appeal of a district
court’s on-record review from the appeal
of a district court’s de novo trial.
D. Legislative Policy Considerations
{33} Opinions will differ on whether
the current process of taking on-record
appeals to the district court, which is a
trial court rather than an appellate court,
makes the best use of the two different
kinds of courts. And one may question
why misdemeanor cases could receive up
to three levels of record review, from the
district court to the Court of Appeals to
the Supreme Court, while felony convictions resulting in sentences of death or
life imprisonment merit only one record
review, see N.M. Const. art. VI, § 2 (giving
this Court exclusive appellate jurisdiction
over an appeal from a final district court
judgment “imposing a sentence of death or
life imprisonment”). This anomaly raises
questions about judicial economy and
fairness.
{34} In prescribing statutory appellate
jurisdiction, the Legislature has the prerogative to take into account these factors
and others. Appeals from the metropolitan
court decided on the record in the district
court do not present the same concerns
as de novo appeals to the district court
because the first court to exercise appellate jurisdiction in a case also reviews for
reversible error the full record that was the
basis for the conviction or other operative judgment. In a de novo appeal to the
district court, the record is newly created
in the district court and, in the absence
of further review by an appellate court,
a party would be denied any review for
trial-level error. But even in an on-record
appeal a single district judge accustomed
to presiding over trials de novo may not
provide protection equivalent to that of a
full appellate panel composed of several
judicial minds focused on the issues. And
an appellate decision by the district court
does not result in a published precedential opinion that will contribute to the
development of New Mexico law. While
these and other jurisprudential policy issues may give rise to varying views on an
effective scheme for appellate review, the
fact remains that the Legislature chose not
to amend Section 39-3-3 in conjunction
with the creation and evolution of the
metropolitan court under Section 34-8A6. The history of New Mexico’s judicial
system demonstrates that the right to appeal from a decision of the district court
has not been limited to judgments of the
district court rendered through an exercise
of original jurisdiction. We conclude that
39
Advance Opinions
New Mexico law still grants the right to
an appeal from district court decisions
reviewing on-record proceedings originating in the metropolitan court.
{35} We note that for on-record appeals
to the district court from metropolitan
court judgments in criminal actions
involving DWI and domestic violence,
Section 34-8A-6(C) provides that “[t]he
manner and method of appeal shall be
set forth by supreme court rule.” We have
never addressed whether the Legislature
intended this section to delegate authority
that would permit this Court to promul-
40
gate rules prescribing a certiorari process
for further review in the Court of Appeals,
see N.M. Const. art. VI, § 29 (“The court
of appeals . . . may be authorized by rules
of the supreme court to issue all writs
necessary or appropriate in aid of its appellate jurisdiction.”), and this question is
not before us at this time. For this case, we
necessarily apply the law as it now exists.
III.CONCLUSION
{36} Confirming our previous order in
this case, we affirm the Court of Appeals
and hold that it has appellate jurisdiction
to review decisions made in on-record
appeals to the district court from the
metropolitan court and that Section 39-3-3
provides the right to such an appeal. We
quash certiorari on all other issues.
WE CONCUR:
(recused)
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FAMILY LAW 101 CLE
The Volunteer Attorney Program/Justice for Families Project
is hosting a CLE entitled “Family Law 101”
on September 9, 2016 from 8:45 am - noon
at New Mexico Legal Aid,
301 Gold Ave. SW, Albuquerque, NM 87102
The CLE (3.0 G pending) will be presented by
Gretchen Walther, Esq., Tiffany Oliver Leigh, Esq.,
Torri Jacobus, Esq., & Kasey Daniel, Esq.
FREE for attorneys who agree to give advice at the
Second Judicial District Court Family Law Clinic
for two clinics, or agree to accept a pro bono limited
representation family law referral from VAP/JFP.
For attorneys not wishing to volunteer,
a $50 donation is suggested to attend.
To attend this CLE, please contact Kasey Daniel at
(505) 545-8543 or kaseyd@nmlegalaid.org
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A Civilized Approach to Civil
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The Mendenhall Firm, P.C.
(505) 243-3357
KarenM@Mendenhallfirm.com
Caren I. Friedman
APPELLATE SPECIALIST
________________
505/466-6418
cf@appellatecounsel.info
Visit the
State Bar of
New Mexico’s
website
www.nmbar.org
Classified
Positions
13th Judicial District Attorney
Assistant Trial Attorney, Senior Trial
Attorney
Assistant Trial Attorney - The 13th Judicial
District Attorney’s Office is accepting applications for entry to mid-level attorney to
fill the positions of Assistant Trial Attorney.
These positions require misdemeanor and
felony caseload experience. Senior Trial Attorney – We are also accepting applications
for attorneys with a high level of experience prosecuting serious violent offenses.
A proven track record in these major cases
and experience in management/supervisory/
personnel areas is also a plus. Salary for each
position is commensurate with experience.
Send resumes to Reyna Aragon, District Office Manager, PO Box 1750, Bernalillo, NM
87004, or via E-Mail to: RAragon@da.state.
nm.us. Deadline for submission of resumes:
Open until positions are filled.
Prosecutor Positions Available
The Twelfth Judicial District Attorney’s
Office in Otero/Lincoln County has job
openings available for all Attorney levels.
Job requirements, qualifications, skills, and
other information pertaining to this position
can be viewed at the New Mexico District
Attorney’s website at www.da.state.nm.us
under personnel inquiries. Salary offered will
be based on qualifications and experience and
is consistent with the New Mexico District
Attorney’s Association Pay and Compensation Plan. Interested individuals should send
a letter of interest and a resume to District
Attorney, David Ceballes, 1000 New York Avenue, Room 101, Alamogordo, New Mexico
88310 or email at 12thda@da.state.nm.us.
Assistant Trial Attorney
Assistant Trial Attorney wanted for immediate employment with the Seventh Judicial
District Attorney’s Office, which includes Catron, Sierra, Socorro and Torrance counties.
Employment will based primarily in Socorro
County (Socorro). Must be admitted to the
New Mexico State Bar and be willing to relocate within 6 months of hire. Salary will be
based on the NM District Attorneys’ Personnel & Compensation Plan and commensurate
with experience and budget availability. Send
resume to: Seventh District Attorney’s Office,
Attention: J.B. Mauldin, P.O. Box 1099, 302
Park Street, Socorro, New Mexico 87801.
Litigator
The Albuquerque office of Brownstein Hyatt
Farber Schreck, LLP is seeking a talented and
ambitious litigator with 1-6 years of experience.
Candidates should have a proven track record
in legal research and drafting of pleadings,
memos and briefs. Excellent academic performance, strong writing and analytical skills,
interpersonal skills and the ability to work in
a team environment required. No search firms
please. Please submit resume, transcripts, writing sample and professional references to Jamie
Olberding, Director of Attorney Recruiting and
Integration, at jolberding@bhfs.com.
General Counsel
The Albuquerque Bernalillo County Water Utility Authority is the largest water and sewer utility
in New Mexico, serving some 600,000 people in
the metro area. We are currently recruiting for
General Counsel to perform complex executive
and professional level work as legal advisor to the
Water Authority Board, the Executive Director
and upper management on all issues related to
Water Authority operations. Applicants must
have a Juris Doctorate Degree from an accredited law school and ten (10) years of increasingly
responsible professional experience practicing
law, including trial experience and managerial
or supervisory experience. Experience in the
public sector with emphasis on federal, state and
municipal law as it applies to the operation of a
publicly owned utility is preferred. Membership
in the New Mexico State Bar and ability to maintain membership is a condition of continued
employment. Applicants must be able to obtain
and maintain a valid New Mexico driver’s license
and an Authority Operator Permit. In addition
to the satisfaction you’ll get from exciting work
in a great organization, Water Authority employees enjoy a competitive salary and benefits
package. Health, dental and vision insurance are
provided with the Water Authority paying 80%
of the premium cost. In addition, new employees
may elect to participate in one of two retirement
plans. The state retirement plan (PERA) is a
defined benefit plan that provides retirement
income up to 90% of the average of your five
highest years' salary. Retirement under PERA
also guarantees you access to the retiree health
care plan. Some new employees may be eligible
to opt out of the PERA pension program and
participate in a 401 Defined Contribution Plan,
similar to 401(k) plans available in the private
sector. Other benefits include generous paid sick
and vacation leave, group term life insurance
paid by the employer, deferred compensation
programs, flex benefit plans, domestic partner
benefits, employee assistance programs, wellness
programs, gym discounts, career counseling,
educational leave and tuition assistance, and
training credit achievement. Salary $90,709 $132,142 annually. The position closes September
6, 2016 and applicants must apply on-line. For
complete requirements and to apply online, visit
www.abcwua.org/employment. EOE employer
Full-Time Staff Attorney
New Mexico Center on Law and Poverty
(www.nmpovertylaw.org) seeks full-time staff
attorney. Required: Law degree and license;
three years of experience practicing law; excellent research, writing, and legal advocacy
skills; ‘no-stone-unturned’ thoroughness
and persistence; leadership; ability to be
articulate and forceful in the face of powerful opposition; detail-orientation. Preferred:
familiarity with poverty and civil rights law
and advocacy; strong Spanish language skills.
Varied, challenging, rewarding work. Good
non-profit salary. Excellent benefits. Balanced
work schedule. Apply in confidence by sending resume and letter specifying how you meet
each of the position reqs to hiringcommittee@
nmpovertylaw.org Please put your name in
the subject line. EEOE
Associate
Plaintiffs’ law firm seeking associate capable
of significant contribution to firm’s litigation cases. A minimum of three years civil
litigation experience, including preparing
complaints and discovery, executing discovery (depositions, motions to compel, trial
briefs, etc.) required. Must have actual jury
trial experience. Recent graduates need not
apply. Must be motivated, a self-starter, and
dedicated team member. Must be capable
of performing referenced duties without
daily supervision. Must be willing to do leg
work, including site inspections, witness
interviews, etc. Frequent travel, both in and
out of state, will be mandatory. Bilingual
(Spanish) strongly preferred. Candidate
would work as first chair in personal injury
cases from small claims to claims in excess
of $1 million. Candidate must be enthusiastic
and competent second chair in larger, more
complex cases. Salary commensurate with
experience. This position is based out of our
Albuquerque office. If you are interested in
this opportunity, please email a resume to
abqlawyer505@gmail.com.
Compliance Specialist
Sandia Laboratory Federal Credit Union
has an opening for a Compliance Specialist. This position requires a candidate who
can communicate effectively and is diligent,
detail-oriented, and discrete, with experience
interpreting and applying regulations. If you
enjoy research and synthesizing information to make decisions, this might be a good
position for you. SLFCU offers competitive
compensation, a great work environment
and a generous benefit package. You may
learn more about this position and about
our organization, and/or submit an employment application at www.slfcu.org (Career
Opportunities). EOE
45
Full-Time Paralegal
or Legal Assistant
Egolf + Ferlic + Harwood is looking to hire
a full-time paralegal or legal assistant. Applicants much be tech-savvy, have strong
follow-through and communication skills,
and be willing to work in a fast-paced and dynamic environment. Preference will be given
to a candidate with knowledge of federal and
state civil rules of procedure, and e-filing
systems. You may send your letter of interest
and resume to our firm administrator, Manya
Snyder at Manya@egolflaw.com.
Time Admin Assistant
Houser & Allison, APC seeks Part Time Admin Assistant. 15-20 hours per week/flexible
schedule, $12-$15 per hour – DOE. Proficient
in Microsoft Word, Excel, Outlook. Ability
to type 40 WPM. Email resume to: scleere@
houser-law.com
Office Space
3500 Comanche NE
Fully furnished office space available. Rent
includes utilities, wifi, parking, shared
conference room, kitchen, referrals and collaboration with other attorneys. $550- 900/
month depending upon your need. Contact
jmarshall@rainesdivorcelaw.com.
Professional Office Space
$829.17 PER MONTH PER 1000 sq. ft. of
PROFESSIONAL OFFICE SPACE FULL
SERVICE. Completely renovated, beautifully
landscaped, 10 ft. ceilings, copious amount of
parking. There are 5 Suites from 1,080 sq. ft.
to a total of 8,585 sq. ft. available. Open floor
plans. Ready for occupancy by September 1.
Day Properties 505-328-3726. Close to major
thoroughfares and I-40.
Miscellaneous
Navajo Law Seminar Oct. 14
Sutin, Thayer & Browne will host its annual
Navajo Law Seminar on October 14, 2016,
at Sandia Resort & Casino in Albuquerque,
along with co-host firm Johnson Barnhouse
& Keegan. The non-profit, daylong event is
expected to offer 8 CLE credits (including
2 ethics credits) applicable to the State Bar
of New Mexico and the Navajo Nation Bar.
Fees and deadlines at sutinfirm.com/newsawards.
Search For Will
Essie Mae Siglar. Age 84. DOD, April 14 2014,
Albuquerque. (913) 915-8659
Experienced Real Estate Paralegal
Experienced part-time real estate paralegal
wanted for a sole attorney real estate practice.
E-Mail cover letter and resume in confidence
to linda@leybalawfirm.com.
Services
Experienced Paralegal
Experienced paralegal available for civil litigation cases, working from my own office. Excellent references. civilparanm@gmail.com.
Nurse Paralegal
Specialist in medical chronologies, related
case analysis/research. Accurate, knowledgeable work product. For resume, work samples,
references: maryj.daniels@yahoo.com.
Experienced Paralegal
Paralegal available for civil litigation cases
working from my office. I have more than
10 year’s experience in district and federal
court drafting complaints, summons, motions, and other court documents; discovery;
assisting attorneys in depositions and trial;
records/deposition review and summaries;
legal research and general case organization.
nmcivpl@aol.com
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.
Briefs, Research, Appeals—
Leave the writing to me.
E x p e r i e nc e d , e f fe c t i ve , re a s on a b le .
cindi.pearlman@gmail.com; (505) 281 6797
46
For more advertising information, contact:
Marcia C. Ulibarri at 505-797-6058
or email mulibarri@nmbar.org
Quality, full-color
printing. Local
service with fast
turnaround.
Business Cards • Letterhead • Envelopes • Booklets
Brochures • Calendars • Greeting Cards • Invitations • and much more!
For more information, contact Marcia Ulibarri at
505-797-6058 or mulibarri@nmbar.org
Ask ab
YOUR out
mem
discoun ber
t!
DIGITAL PRINT CENTER
47
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