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March 23, 2016 • Volume 55, No. 12
Kayenta Volcanic Core by Robert A. Martin
Inside This Issue
Fifth Judicial District Court: Vacancy...................................... 4
From the New Mexico Supreme Court
Update Your Contact Information for the
2016–2017 Bench & Bar Directory............................................ 6
2015-NMSC-036, No. S-1-SC-34974:
Moses v. Skandera ................................................................ 17
2016 Annual Awards Open for Nominations......................... 7
2016-NMSC-001, No. S-1-SC-34549:
State v. Nichols ..................................................................... 24
Clerk’s Certificates..................................................................... 15
From the New Mexico Court of Appeals
2015-NMCA-118, No. 33,921: State v. Ben ..................... 30
Atkinson, thAl & BAker, P.C.
Proudly Announces
the Retirement of
John S. Thal
“Happy Trails To You, John”
The Firm Is Also Proud
to Announce that
Justin D. Rodriguez
Has Become a Shareholder
The Firm Will Continue To Practice As
Atkinson, BAker & rodriguez, P.C.
201 Third Street NW, Suite 1850
Albuquerque, NM 87102
505-764-8111
2
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
Table of Contents
Officers, Board of Bar Commissioners
J. Brent Moore, President
Scotty A. Holloman, President-elect
Dustin K. Hunter, Vice President
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
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 • [email protected]
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
505-797-6058 • [email protected]
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©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: [email protected] • www.nmbar.org
March 23, 2016, Vol. 55, No. 12
Notices ..................................................................................................................................................................4
2016 Annual Awards Open for Nominations...........................................................................................7
Legal Education Calendar...............................................................................................................................9
Writs of Certiorari.............................................................................................................................................11
Court of Appeals Opinions List....................................................................................................................14
Clerk’s Certificates............................................................................................................................................15
Recent Rule-Making Activity........................................................................................................................16
Opinions
From the New Mexico Supreme Court
2015-NMSC-036, No. S-1-SC-34974: Moses v. Skandera ..........................................................17
2016-NMSC-001, No. S-1-SC-34549: State v. Nichols ................................................................24
From the New Mexico Court of Appeals
2015-NMCA-118, No. 33,921: State v. Ben ....................................................................................30
Advertising.........................................................................................................................................................33
State Bar Workshops
Meetings
March
March
24
Natural Resources, Energy and
Environmental Law Section BOD,
Noon, teleconference
23
Consumer Debt/Bankruptcy Workshop:
6–9 p.m., State Bar Center, Albuquerque,
505-797-6094
25
Immigration Law Section BOD,
Noon, State Bar Center
April
1
Civil Legal Clinic:
10 a.m.–1 p.m., First Judicial District Court,
Santa Fe, 1-877-266-9861
26
Young Lawyers Division BOD,
10 a.m., State Bar Center
6
Divorce Options Workshop:
6–8 p.m., State Bar Center, Albuquerque,
505-797-6003
April
1
Criminal Law Section BOD,
Noon, Kelley & Boone, Albuquerque
6
Civil Legal Clinic:
10 a.m.–1 p.m., Second Judicial District
Court, Albuquerque, 1-877-266-9861
5
Bankruptcy Law Section BOD,
Noon, U.S. Bankruptcy Court
5
Health Law Section BOD,
9 a.m., teleconference
6
Employment and Labor Law Section BOD,
Noon, State Bar Center
8
Prosecutors Section BOD,
Noon, State Bar Center
12
Appellate Practice Section BOD,
Noon, teleconference
12
Legal Clinic for Veterans:
8:30–11 a.m., New Mexico Veterans
Memorial, Albuquerque, 505-265-1711,
ext. 3434
20
Family Law Clinic:
10 a.m.–1 p.m., Second Judicial District
Court, Albuquerque, 1-877-266-9861
27
Consumer Debt/Bankruptcy Workshop:
6–9 p.m., State Bar Center, Albuquerque,
505-797-6094
Cover Artist: Robert A. Martin began photographing at 8 years old and continues into his eigth decade, enjoying a wide
variety of subjects. Martin was a member of the State Bar, practicing from 1967–2002. He enjoys traveling extensively.
View more of his work online at https:[email protected]/.
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
3
Notices
Court News
New Mexico Supreme Court
Professionalism Tip
With respect to opposing parties and their counsel:
I will not make improper statements of fact or of law.
Proposed Amendments to Rules of
Practice and Procedure
Several Supreme Court Committees are
considering whether to recommend for the
Supreme Court’s consideration proposed
amendments to the rules of practice and
procedure summarized in the March 16
issue of the Bar Bulletin (Vol. 55, No. 10).
To view and comment on the proposed
amendments summarized below before
they are submitted to the Court for final
consideration, submit comments electronically through the Supreme Court’s website
at http://nmsupremecourt.nmcourts.
gov, by email to nmsupremecourtclerk@
nmcourts.gov, by fax to 505-827-4837,
or by mail to Joey D. Moya, Clerk, New
Mexico Supreme Court, PO Box 848, Santa
Fe, New Mexico 87504-0848
Comments must be received by the
Clerk on or before April 6 to be considered
by the Court. Note that any submitted
comments may be posted on the Supreme
Court’s website for public viewing.
New Mexico
Board of Bar Examiners
Services for Attorneys
The New Mexico Board of Bar Examiners provides the following services to New
Mexico attorneys: duplicate licenses; certification of bar application and examination
dates, bar passage, MPRE scores, and
admission dates; copies of bar applications;
and reinstatement applications. Attorneys
must request their own file documents and
certifications; these items are not available
to the general public. For information and
fees, visit http://nmexam.org/attorneyservices/.
New Mexico Court of Appeals
50th Anniversary Celebration
Join the New Mexico Court of Appeals
in celebrating its 50th Anniversary at an
open house reception from 4–6 p.m., April
1, at the Pamela B. Minzner Law Center.
R.S.V.P.. to the COA Clerks’ Office at 505841-4618 or by email to Aletheia Allen
at [email protected] by March 25.
Parking is available in the L lot only.
Second Judicial District Court
Notice to Attorneys:
Gov. Susana Martinez appointed David
Williams to fill the vacancy of Division
4
IX at the Second Judicial District Court.
Effective Feb. 29, Judge Williams will be
assigned criminal court cases previously
assigned to Judge Judith Nakamura’s special calendar. Individual notices of reassignment will be sent for active pending
cases. Inactive cases will be reassigned to
Judge Williams by March 11. Check Odyssey to determine if an inactive case has
been reassigned to Judge Williams. Pursuant to Supreme Court Rule 1-088.1 parties
who have not yet exercised a peremptory
excusal will have 10 days from April 13 to
excuse Judge David Williams.
Fifth Judicial District Court
Announcement of Vacancy
A vacancy will exist in the Fifth Judicial
District Court, Chaves County, as of April
2 due to the retirement of Hon. Steven L.
Bell on April 1. This will be for the Division
X bench assignment. Inquiries regarding
additional details or assignment of this
judicial vacancy should be directed to
the chief judge or the administrator of
the court. Alfred Mathewson, chair of the
Judicial Nominating Commission, solicits
applications for this position from lawyers
who meet the statutory qualifications in
Article VI, Section 8 of the New Mexico
Constitution. Applications can be found at
http://lawschool.unm.edu/judsel/application.php. The deadline is 5 p.m., April 19.
Applicants seeking information regarding
election or retention if appointed should
contact the Bureau of Elections in the Office of the Secretary of State. The Judicial
Nominating Commission will meet at 9
a.m. on April 28 at the Chaves County
Courthouse, 400 N. Virginia, Roswell, to
evaluate the applicants. The Commission
meeting is open to the public and members
of the public who have comments about
any of the candidates will have an opportunity to be heard.
Retirement Celebration for
Judge Steven L. Bell
The judges and employees of the Fifth
Judicial District Court invite members of
the legal community to attend a retirement
ceremony for the Hon. Steven L. Bell. The
celebration will be at 3 p.m., March 25, at
the Chaves County Courthouse, Historic
Courtroom 1. A reception will follow on
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
the first floor of the courthouse in the
historic rotunda.
Ninth Judicial District Court
Notice of Exhibit Destruction
The Ninth Judicial District Court, Roosevelt County, will destroy the following
exhibits by order of the court if not claimed
by the allotted time: 1) All unmarked exhibits, oversized poster boards/maps and
diagrams; 2) Exhibits filed with the court,
in criminal, civil, children’s court, domestic, competency/mental health, adoption
and probate cases for the years 1993–2012
may be retrieved through April 30; and
3) All cassette tapes in criminal, civil,
children’s court, domestic, competency/
mental health, adoption and probate cases
for years prior to 2007 have been exposed
to hazardous toxins and extreme heat in
the Roosevelt County Courthouse and are
ruined and cannot be played, due to the
exposures. These cassette tapes have either
been destroyed for environmental health
reasons or will be destroyed by April 30.
For more information or to claim exhibits,
contact the Court at 575-359-6920.
State Bar News
Attorney Support Groups
• April 4, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (the group
meets the first Monday of the month.)
• April 11, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, King Room in the Law
Library (the group meets on the second
Monday of the month). To increase
access, teleconference participation is
now available. Dial 1-866-640-4044 and
enter code 7976003#.
• April 18, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (the group
meets the third Monday of the month.)
For more information, contact Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
Board of Bar Commissioners
Appointments
The BBC will make the following appointments. Members who want to serve
should send a letter of interest and brief
résumé to executive director Joe Conte,
State Bar of New Mexico, PO Box 92860,
Albuquerque, NM 87199-2860; fax to 505828-3765; or e-mail to [email protected]
ABA House of Delegates
The BBC will make one appointment
to the American Bar Association House
of Delegates for a two-year term, which
will expire at the conclusion of the 2018
ABA Annual Meeting. The delegate must
be willing to attend meetings or otherwise
complete his/her term and responsibilities
without reimbursement or compensation
from the State Bar; however, the ABA
provides reimbursement for expenses to
attend the ABA mid-year meetings. The
deadline is April 15.
Civil Legal Services Commission
The BBC will make one appointment to
the Civil Legal Services Commission for a
three-year term. The deadline is April 15.
Judicial Standards Commission
The Board of Bar Commissioners will
make one appointment to the Judicial
Standards Commission for a four-year
term. The responsibilities of the Judicial
Standards Commission are to receive,
review and act upon complaints against
State judges, including supporting documentation on each case as well as other
issues that may surface. Experience with
receiving, viewing and preparing for meetings and trials with substantial quantities
of electronic documents is necessary. The
commission meets once every eight weeks
in Albuquerque and additional hearings
may be held as many as four to six times
a year. The time commitment to serve on
this board is significant and the workload
is voluminous. Applicants should consider
all potential conflicts caused by service on
this board. The deadline is April 15.
Risk Management Advisory Board
A vacancy exists on the Risk Management Advisory Board and a replacement
needs to be appointed for the remainder
of the term expiring June 30, 2018. The
appointee is requested to attend the Risk
Management Advisory Board meetings.
A summary of the duties of the advisory
board, pursuant to §15-7-5 NMSA 1978,
are to review: specifications for all insurance policies to be purchased by the risk
management division; professional service
and consulting contracts or agreements to
be entered into by the division; insurance
companies and agents to submit proposals when insurance is to be purchased by
negotiation; rules and regulations to be
promulgated by the division; certificates
of coverage to be issued by the division;
and investments made by the division. The
deadline is March 31.
Entrepreneurs in Community
Lawyering
Announcement of New Program
The New Mexico State Bar Foundation announces its new legal incubator
initiative, Entrepreneurs in Community
Lawyering. ECL will help new attorneys
to start successful and profitable, solo
and small firm practices throughout
New Mexico. Each year, ECL will accept
three licensed attorneys with 0-3 years
of practice who are passionate about
starting their own solo or small firm
practice. ECL is a 24 month program
that will provide extensive training in
both the practice of law and how to run
a law practice as a successful business.
ECL will provide subsidized office space,
office equipment, State Bar licensing
fees, CLE and mentorship fees. ECL will
begin operations in October and the Bar
Foundation is now accepting applications
from qualified practitioners. To view
the program description, www.nmbar.
org/ECL. For more information, contact
Director of Legal Services Stormy Ralstin
at 505-797-6053.
Fee Arbitration Program
This program helps to resolve fee disputes
between attorneys and their clients or
between attorneys. Call 505-797-6054 or
1-800-876-6227.
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 > for Members >
Lawyers/Judges Asswistance
UNM
Young Lawyers Division
Law Library
Join the Young Lawyers Division for
a happy hour event from 5:30-7 p.m.,
March 23, at The Liberty. R.S.V.P.s are
not necessary. Co-sponsors include the
UNM School of Law, the New Mexico
Hispanic Bar Association and the New
Mexico Women’s Bar Association. Hennighausen & Olsen will sponsor a limited
hosted bar. For more information, contact
Anna C. Rains, [email protected]
Building & Circulation
Monday–Thursday Friday
Saturday
Sunday
Reference
Monday–Friday
Saturday–Sunday
Hours Through May 14
Roswell Happy Hour
Volunteers Needed for Wills for
Heroes Event in Santa Fe
YLD is seeking volunteer attorneys
for its Wills for Heroes event at 9 a.m. to
noon, on Saturday, April 23, at the Santa
Fe County Station 60-Rancho Viejo, 37
Rancho Viejo Boulevard, Santa Fe. Attorneys will provide free wills, healthcare and
financial powers of attorney and advanced
medical directives for first responders
Volunteers need no prior experience with
wills. Contact Jordan Kessler at jlkessler@
hollandhart.com.
8 a.m.–8 p.m.
8 a.m.–6 p.m.
10 a.m.–6 p.m.
Noon–6 p.m.
9 a.m.–6 p.m.
Closed
Mexican American Law
Student Association
21st Annual Fighting for
Justice Banquet
The Mexican American Law Student
Association invites members of the legal
community to the 21st Annual Fighting
for Justice Banquet at 6 p.m., April 16, at
Hotel Albuquerque in Old Town. Tickets
and sponsorship packages can be bought
at http://malsaorg.wix.com/ffj2016 or by
contacting MALSA President Jazmine
Ruiz at [email protected] MALSA will
award Hon. Justice Cruz Reynoso of the
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
5
2016–2017 Bench & Bar Directory
Submit
announcements
for publication in
the Bar Bulletin to
[email protected]
g
by noon Monday
the week prior
to publication.
California Supreme Court (ret.) with the
2016 Fighting for Justice Award for his
remarkable work in civil rights. Justice
Reynoso will be introduced by his former
colleague, emeritus professor and former
dean of the UNM School of Law Leo
Romero.
Other Bars
Albuquerque Lawyers Club
April Lunch Meeting
The Albuquerque Lawyers Club invites
members of the legal community to its
lunch meeting at noon, April 6, at Seasons
Rotisserie & Grill. Jean Bernstein, CEO of
Flying Star Cafes and Satellite Coffee, will be
presenting. The luncheon is free for members
and for $30 non-members. For more information, email [email protected]
American Bar Association
Criminal Justice Section
Spring Meeting in Albuquerque
The American Bar Association Criminal Justice Section’s Spring Meeting,
co-sponsored by the State Bar of New
Mexico, will be “Neuroscience: Paving
the Way for Criminal Justice Reform.” The
meeting will be held April 28-30 at Hotel
Albuquerque at Old Town in Albuquerque.
Topics include how neuroscience is paving the way to criminal justice reform,
neuroscience and environmental factors,
neuroscience and solitary confinement
and the neuroscience of hate: the making
of extremist groups. New Mexico Supreme
Court Justice Charles W. Daniels will be
the luncheon keynote speaker. Roberta
Cooper Ramo, the first woman to become
president of the American Bar Association,
will provide opening remarks. State Bar of
New Mexico members can register for the
discounted rate of $75. For more informa6
Update Your Contact Information by March 25
To verify your current information: www.nmbar.org/FindAnAttorney
To submit changes (must be made in writing):
Online: Visit www.nmbar.org > for Members > Change of Address
Mail: Address Changes, PO Box 92860, Albuquerque, NM 87199-2860
Fax: 505-828-3765
Email: [email protected]
Publication is not guaranteed for information submitted after March 25.
tion and to register, visit: http://ambar.org/
cjs2016spring.
Women Rainmakers Event:
Using Persuasion to Win
Women of the New Mexico legal community are invited to attend the upcoming
ABA Women Rainmakers Spring 2016
Workshop “Don’t Be Afraid to Persuade:
Using Persuasion to Win” from 3:30–5:30
p.m., April 7, at the Albuquerque Country
Club. The workshop is hosted by RoybalMack Law, PC, and the Law Offices of Erika
E. Anderson, LLC. During the workshop,
attendees will explore the art of persuasion
in depth, using sound principles and group
exercises to help them gain the confidence
you need to succeed at appropriately
influencing others. Women attorneys at
all levels of experience can benefit from
learning how to successfully use persuasion in their interactions with clients,
colleagues and others. The workshop is
free but space is limited and registration
is required: http://shop.americanbar.org/
ebus/ABAEventsCalendar/EventDetails.
aspx?productId=239632793.
New Mexico Criminal Defense
Lawyers Association
Civil Rights Solitary Confinement
CLE Program
By popular demand, the New Mexico
Criminal Defense Lawyers Association is
hosting a special civil rights CLE (5.2 G, 1.0
EP) on solitary confinement on April 8 in
Albuquerque for criminal defense and civil
rights plaintiffs’ attorneys. Learn how to
protect the constitutional rights of clients
subjected to solitary confinement while
in pre-trial custody, or in post-conviction
detention. Taught by some of the state’s top
practitioners, this CLE also provides a road
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
map of the civil rights litigation process
in the context of solitary confinement,
including hurdles which face a civil rights
attorney. Visit www.nmcdla.org to register.
Other News
Dine’ Hoghaan Bii
Development Inc.
Veterans Mini Stand Down
Dine’ Hoghaan Bii Development Inc.
calls for attorney volunteers for its first
annual Veterans Mini Stand Down from
8:30 a.m.– 3:30 p.m. on March 25 at the
Fire Rock Casino in Church Rock (just
east of Gallup). There will be two-hour
shifts with two attorneys for each shift. To
schedule a shift or for more information,
contact [email protected]
New Mexico Workers’
Compensation Administration
Notice of Public Hearing
The New Mexico Workers’ Compensation Administration will conduct a public
hearing on the adoption of new WCA
Rules at 1:30 p.m., April 8, at the WCA,
2410 Centre Avenue SE, Albuquerque.
Copies of the proposed rule amendments
will be available on March 21 at http://
www.workerscomp.state.nm.us/ or by calling 505-841-6083. Written comments on
the rule changes will be accepted until the
close of business on April 20. Comments
made in writing and at the public hearing
will be taken into consideration. The WCA
is proposing new rules regarding tests,
testing and cutoff levels for intoxication
or influence as well as other miscellaneous
revisions to Part 3. Individuals with disabilities who want to participate in the
hearing should contact the general counsel
office at 505-841-6083.
2016
Annual Meeting–
Bench & Bar Conference
Call for Nominations
State Bar of New Mexico 2016 Annual Awards
N
ominations are being accepted for the 2016 State Bar of New Mexico Annual Awards to recognize those who have
distinguished themselves or who have made exemplary contributions to the State Bar or legal profession in 2015
or 2016. The awards will be presented August 19 during the 2016 Annual Meeting—Bench and Bar Conference
at the Buffalo Thunder Resort in Santa Fe. All awards are limited to one recipient per year, whether living or deceased.
Previous recipients for the past five years are listed below.
• Distinguished Bar Service Award-Lawyer •
Recognizes attorneys who have provided valuable service and contributions to the legal profession and the State Bar of
New Mexico over a significant period of time.
Previous recipients: Jeffrey H. Albright, Carol Skiba, Ian Bezpalko, John D. Robb Jr., Mary T. Torres
• Distinguished Bar Service Award–Nonlawyer •
Recognizes nonlawyers who have provided valuable service and contributions to the legal profession over a significant
period of time.
Previous recipients: Kim Posich, Rear Admiral Jon Michael Barr (ret.), Hon. Buddy J. Hall, Sandra Bauman, David Smoak
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
7
• Justice Pamela B. Minzner* Professionalism Award •
Recognizes attorneys or judges who, over long and distinguished legal careers, have by their ethical and personal
conduct exemplified for their fellow attorneys the epitome of professionalism.
Previous recipients: S. Thomas Overstreet, Catherine T. Goldberg, Cas F. Tabor, Henry A. Kelly, Hon. Angela J. Jewell
*Known for her fervent and unyielding commitment to professionalism, Justice Minzner (1943–2007) served on
the New Mexico Supreme Court from 1994–2007.
• Outstanding Legal Organization or Program Award •
Recognizes sections, committees, local and voluntary bars and outstanding or extraordinary law-related
organizations or programs that serve the legal profession and the public.
Previous recipients: Pegasus Legal Services for Children, Corinne Wolfe Children’s Law Center, Divorce Options
Workshop, United South Broadway Corp. Fair Lending Center, N.M. Hispanic Bar Association
• Outstanding Young Lawyer of the Year Award •
Awarded to attorneys who have, during the formative stages of their legal careers by their ethical and personal
conduct, exemplified for their fellow attorneys the epitome of professionalism; nominee has demonstrated
commitment to clients’ causes and to public service, enhancing the image of the legal profession in the eyes of the
public; nominee must have practiced no more than five years or must be no more than 36 years of age.
Previous recipients: Tania S. Silva, Marshall J. Ray, Greg L. Gambill, Robert L. Jucero Jr., Keya Koul
• Robert H. LaFollette* Pro Bono Award •
Presented to an attorney who has made an exemplary contribution of time and effort, without compensation, to
provide legal assistance to people who could not afford the assistance of an attorney.
Previous recipients: Robert M. Bristol, Erin A. Olson, Jared G. Kallunki, Alan Wainwright, Ronald E. Holmes
*Robert LaFollette (1900–1977), director of Legal Aid to the Poor, was a champion of the underprivileged who,
through countless volunteer hours and personal generosity and sacrifice, was the consummate humanitarian and
philanthropist.
• Seth D. Montgomery* Distinguished Judicial Service Award •
Recognizes judges who have distinguished themselves through long and exemplary service on the bench and who
have significantly advanced the administration of justice or improved the relations between the bench and bar;
generally given to judges who have or soon will be retiring.
Previous recipients: Hon. Cynthia A. Fry, Hon. Rozier E. Sanchez, Hon. Bruce D. Black, Justice Patricio M. Serna
(ret.), Hon. Jerald A. Valentine
*Justice Montgomery (1937–1998), a brilliant and widely respected attorney and jurist, served on the New Mexico
Supreme Court from 1989–1994.
A letter of nomination for each nominee should be sent to Joe Conte, Executive Director, State Bar of New Mexico, PO Box
92860, Albuquerque, NM 87199-2860; fax 505-828-3765; or email [email protected] Please note that we will be preparing
a video on the award recipients which will be presented at the awards reception, so please provide names and contact
information for three or four individuals who would be willing to participate in the video project in the nomination
letter.
Deadline for Nominations: May 20
8
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
Legal Education
March
23
Avoiding Family Feuds in Trusts
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
24
Full Implementation Navigating
the ACA Minefield
6.6 G
Live Seminar
Sterling Education Services Inc.
www.sterlingeducation.com
25
Legal Technology Academy for New
Mexico Lawyers
4.0 G, 2.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
28
Tech Tock, Tech Tock: Social Media
and the Countdown to Your Ethical
Demise
3.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
28
What NASCAR, Jay-Z & the Jersey
Shore Teach About Attorney
Ethics—2016 Edition
3.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
31
Fair or Foul: Lawyers’ Duties of
Fairness and Honesty to Clients,
Parties, Courts, Counsel and
Others
2.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
31
Working With Expert Witnesses
3.0 G
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
29
Drafting Demand Letters
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
April
5
Planning Due Diligence in Business
Transactions
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
8
7
Treatment of Trusts in Divorce
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
8
8
2015 Land Use Law in New Mexico
5.0 G, 1.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
8
More Reasons to be Skeptical of
Expert Witnesses Part VI (2015)
5.0 G, 1.5 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
8
Federal Practice Tips and Advice
from U.S. Magistrate Judges
2.0 G, 1.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
Invasion of the Drones: IP –
Privacy, Policies, Profits (2015
Annual Meeting)
1.5 G
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
Civil Rights: Solitary Confinement
5.2 G, 1.0 EP
Live Program, Albuquerque
New Mexico Criminal Defense
Lawyers Association
www.nmcdla.org
14
Governance for Nonprofits
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
14
Update on New Mexico Rules of
Evidence
2.0 G
Live Program
New Mexico Legal Aid
505-768-6112
15
Guardianship in New Mexico: The
Kinship Guardianship Act
5.5 G, 1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
18
Disciplinary Process Civility and
Professionalism
1.0 EP
Live Program
First Judicial District Court
505-946-2802
22
Ethics for Estate Planners
1.0 EP
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
26
Employees, Secrets and
Competition: Non-Competes and
More
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
9
Legal Education
www.nmbar.org
April
27
Landlord Tenant Law Lease
Agreements Defaults and
Collections
5.6 G, 1.0 EP
Live Seminar
Sterling Education Services Inc.
www.sterlingeducation.com
28
Annual Advanced Estate Planning
Strategies
11.2 G
Live Program
Texas State Bar
www.texasbarcle.com
29
2016 Legislative Preview
2.0 G
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
29
Criminal Procedure Update
1.2 G
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
29
2015 Mock Meeting of the Ethics
Advisory Committee
2.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
30
13
Spring Elder Law Institute
6.2 G
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
20
Law Day CLE
3.0 G
Live Program
State Bar of New Mexico
Paralegal Division
505-888-4357
May
4
Ethics and Drafting Effective
Conflict of Interest Waivers
1.0 EP
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
5
Public Records and Open Meetings
5.5 G, 1.0 EP
Live Seminar, Albuquerque
New Mexico Foundation for
Open Government
www.nmfog.org
6
Best and Worst Practices Including
Ethical Dilemmas in Mediation
5.0 G, 1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
11
Adding a New Member to an LLC
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
17
Workout of Defaulted Real Estate
Project
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
19
2016 Retaliation Claims in
Employment Law Update
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
20
The New Lawyer – Rethinking Legal
Services in the 21st Century
4.5 G, 1.5 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
June
6
2016 Estate Planning Update
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
17
Legal Ethics in Contract Drafting
1.0 EP
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
16
Negotiating and Drafting Issues
with Small Commercial Leases
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
10
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
Legal Writing – From Fiction to
Fact: Morning Session (2015)
2.0 G, 1.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
20
Social Media and the Countdown to
Your Ethical Demise (2016)
3.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
20
What NASCAR, Jay-Z & the Jersey
Shore Teach About Attorney Ethics
(2016 Edition)
3.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
20
Ethics and Virtual Law Practices
1.0 EP
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
24
Ethics and Social Media: Current
Developments
1.0 EP
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective February 26, 2016
Petitions for Writ of Certiorari Filed and Pending:
Date Petition Filed
No. 35,779 State v. Harvey
COA 33,724 02/26/16
No. 35,777 N.M. State Engineer v. Santa Fe
Water Resource
COA 33,704 02/25/16
No. 35,776 State v. Mendez
COA 34,856 02/25/16
No. 35,775 Northern N.M. Federation v. Northern N.M.
College
COA 33,982 02/25/16
No. 35,774 State v. Damon C.
COA 33,962 02/24/16
No. 35,773 State v. Simpson
COA 33,723 02/24/16
No. 35,772 Castillo v. Arrieta
COA 34,108 02/24/16
No. 35,771 State v. Garcia
COA 33,425 02/24/16
No. 35,768 State v. Begay
COA 34,409 02/22/16
No. 35,767 State v. Gallegos
COA 34,698 02/22/16
No. 35,765 State v. Perez
COA 31,678 02/19/16
No. 35,764 State v. Kingston
COA 32,962 02/19/16
No. 35,758 State v. Abeyta
COA 33,461 02/15/16
No. 35,759 State v. Pedroza
COA 33,867 02/15/16
No. 35,760 State v. Gabaldon
COA 34,770 02/12/16
No. 35,763 State v. Marcelina R.
COA 34,683 02/12/16
No. 35,754 Valenzuela v.
A.S. Horner Inc.
COA 33,521 02/12/16
No. 35,753 State v. Erwin
COA 33,561 02/12/16
No. 35,751 State v. Begay
COA 33,588 02/12/16
No. 35,750 State v. Norma M.
COA 34,768 02/11/16
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. 35,742 State v. Jackson
COA 34,852 02/05/16
No. 35,747 Sicre v. Perez
12-501 02/04/16
No. 35,743 Conger v. Jacobson
COA 34,848 02/04/16
No. 35,741 State v. Coleman
COA 34,603 02/04/16
No. 35,740 State v. Wisner
COA 34,974 02/04/16
No. 35,739 State v. Angulo
COA 34,714 02/04/16
No. 35,746 Bradford v. Hatch
12-501 02/01/16
No. 35,371 Citimortgage v. Tweed COA 34,870 01/29/16
No. 35,730 State v. Humphrey
COA 34,601 01/29/16
No. 35,722 James v. Smith
12-501 01/25/16
No. 35,711 Foster v. Lea County
12-501 01/25/16
No. 35,713 Hernandez v. CYFD
COA 33,549 01/22/16
No. 35,718 Garcia v. Franwer
12-501 01/19/16
No. 35,717 Castillo v. Franco
12-501 01/19/16
No. 35,707 Marchand v. Marchand COA 33,255 01/19/16
No. 35,702 Steiner v. State
12-501 01/12/16
No. 35,682 Peterson v. LeMaster
12-501 01/05/16
No. 35,677 Sanchez v. Mares
12-501 01/05/16
No. 35,669 Martin v. State
12-501 12/30/15
No. 35,665 Kading v. Lopez
12-501 12/29/15
No. 35,664 Martinez v. Franco
12-501 12/29/15
No. 35,657 Ira Janecka
12-501 12/28/15
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. 35,612
No. 35,599
No. 35,593
No. 35,588
No. 35,581
No. 35,586
No. 35,576
No. 35,575
No. 35,555
No. 35,554
No. 35,523
No. 35,522
No. 35,495
No. 35,479
No. 35,474
No. 35,466
No. 35,440
No. 35,422
No. 35,374
No. 35,372
No. 35,370
No. 35,353
No. 35,335
No. 35,371
No. 35,266
No. 35,261
No. 35,159
No. 35,097
No. 35,099
No. 34,937
No. 34,932
No. 34,907
No. 34,680
No. 34,777
No. 34,775
No. 34,706
Riley v. Wrigley
12-501
Miera v. Hatch
12-501
Garcia v. Hatch Valley
Public Schools
COA 33,310
Benjamin v. State
12-501
Dimas v. Wrigley
12-501
Robles v. State
12-501
Bledsoe v. Martinez
12-501
Pallares v. Martinez
12-501
Lopez v. Frawner
12-501
Saiz v. State
12-501
Torrez v. Mulheron
12-501
Tafoya v. Stewart
12-501
Quintana v. Hatch
12-501
Torrez v. State
12-501
Salgado v. Morris
12-501
Saldana v. Mercantel
12-501
Oakleaf v. Frawner
12-501
Thompson v. Frawner
12-501
Flores-Soto v. Wrigley
12-501
Rivers v. Heredia
12-501
McCoy v. Horton
12-501
Denham v. State
12-501
Stengel v. Roark
12-501
Johnson v. Hatch
12-501
State v. Ross
COA 33,966
Garcia v. Wrigley
12-501
Gonzales v. Franco
12-501
State v. Johnson
12-501
Loughborough v. Garcia
12-501
Martinez v. State
12-501
Chavez v. Hatch
12-501
Collins v. Garrett
COA 34,368
Chavez v. Hatch
12-501
Pierce v. Nance
12-501
Guy v.
N.M. Dept. of Corrections
12-501
Trujillo v. Hickson
12-501
Jacobs v. Nance
12-501
Marrah v. Swisstack
12-501
Keller v. Horton
12-501
Pittman v.
N.M. Corrections Dept.
12-501
Gonzales v. Sanchez
12-501
Cantone v. Franco
12-501
Wing v. Janecka
12-501
State v. Dorais
COA 32,235
State v. Merhege
COA 32,461
Camacho v. Sanchez
12-501
12/21/15
12/18/15
12/16/15
12/16/15
12/11/15
12/10/15
12/09/15
12/09/15
12/07/15
12/01/15
11/23/15
11/19/15
11/06/15
11/04/15
11/02/15
10/30/15
10/23/15
10/23/15
10/09/15
10/09/15
09/23/15
09/21/15
08/21/15
08/17/15
08/17/15
08/06/15
07/22/15
07/17/15
06/23/15
06/22/15
06/15/15
06/12/15
06/03/15
05/22/15
04/30/15
04/23/15
03/12/15
01/26/15
12/11/14
10/20/14
10/16/14
09/11/14
07/14/14
07/02/14
06/19/14
05/13/14
Bar Bulletin - March 23, 2016 - Volume 55, No. 12 11
Writs of Certiorari
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
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
02/25/14
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Certiorari Granted but Not Yet Submitted to the Court:
(Parties preparing briefs) Date Writ Issued
No. 33,725 State v. Pasillas
COA 31,513 09/14/12
No. 33,877 State v. Alvarez
COA 31,987 12/06/12
No. 33,930 State v. Rodriguez
COA 30,938 01/18/13
No. 34,363 Pielhau v. State Farm
COA 31,899 11/15/13
No. 34,274 State v. Nolen
12-501 11/20/13
No. 34,443 Aragon v. State
12-501 02/14/14
No. 34,522 Hobson v. Hatch
12-501 03/28/14
No. 34,582 State v. Sanchez
COA 32,862 04/11/14
No. 34,694 State v. Salazar
COA 33,232 06/06/14
No. 34,669 Hart v. Otero County Prison 12-501 06/06/14
No. 34,650 Scott v. Morales
COA 32,475 06/06/14
No. 34,784 Silva v. Lovelace Health
Systems, Inc.
COA 31,723 08/01/14
No. 34,812 Ruiz v. Stewart
12-501 10/10/14
No. 34,830 State v. Le Mier
COA 33,493 10/24/14
No. 34,929 Freeman v. Love
COA 32,542 12/19/14
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. 34,949 State v. Chacon
COA 33,748 05/11/15
No. 35,296 State v. Tsosie
COA 34,351 06/19/15
No. 35,213 Hilgendorf v. Chen
COA 33056 06/19/15
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. 35,438 Rodriguez v.
Brand West DairyCOA 33,104/33,675 08/31/15
No. 35,426 Rodriguez v.
Brand West DairyCOA 33,675/33,104 08/31/15
No. 35,499 Romero v.
Ladlow Transit Services COA 33,032 09/25/15
No. 35,456 Haynes v. Presbyterian
Healthcare Services
COA 34,489 09/25/15
12
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
No. 35,437
No. 35,515
No. 35,614
No. 35,609
No. 35,512
No. 34,790
No. 35,680
State v. Tafoya
Saenz v.
Ranack Constructors
State v. Chavez
Castro-Montanez v.
Milk-N-Atural
Phoenix Funding v.
Aurora Loan Services
Venie v. Velasquez
State v. Reed
COA 34,218 09/25/15
COA 32,373 10/23/16
COA 33,084 01/19/16
COA 34,772 01/19/16
COA 33,211 01/19/16
COA 33,427 01/19/16
COA 33,426 02/05/16
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 10/28/13
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. 34,613 Ramirez v. State
COA 31,820 12/17/14
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. 34,726 Deutsche Bank v.
Johnston
COA 31,503 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 Noice v. BNSF
COA 31,935 02/17/16
No. 35,249 Kipnis v. Jusbasche
COA 33,821 02/29/16
No. 35,302 Cahn v. Berryman
COA 33,087 02/29/16
No. 35,349 Phillips v. N.M. Taxation and
Revenue Dept.
COA 33,586 03/14/16
No. 35,148 El Castillo Retirement Residences v.
Martinez
COA 31,701 03/16/16
No. 35,297 Montano v. Frezza
COA 32,403 03/28/16
No. 35,214 Montano v. Frezza
COA 32,403 03/28/16
No. 35,386 State v. Cordova
COA 32,820 03/28/16
No. 35,286 Flores v.
Herrera
COA 32,693/33,413 03/30/16
No. 35,395 State v. Bailey
COA 32,521 03/30/16
No. 35,130 Progressive Ins. v. Vigil COA 32,171 03/30/16
Writs of Certiorari
Opinion on Writ of Certiorari:
No. 35,298
No. 35,145
Petition for Writ of Certiorari Denied:
Date Opinion Filed
COA 33,090 02/25/16
COA 31,972 02/25/16
State v. Holt
State v. Benally
No. 35,733
No. 35,732
No. 35,705
No. 35,551
No. 35,540
State v. Meyers
State v. Castillo
State v. Farley
Ortiz v. Wrigley
Fausnaught v. State
Date Order Filed
COA 34,690 02/26/16
COA 34,641 02/26/16
COA 34,010 02/24/16
12-501 02/24/16
12-501 02/24/16
Entrepreneurs in Community Lawyering
New Mexico’s Solo and Small Practice Incubator
Program Goals
succ
ess
un
it
y
• Train new attorneys to be successful solo practitioners
• Ensure that modest -income New Mexicans have access to
affordable legal services
• Expand legal services in rural areas of New Mexico
ser
vice
comm
Participants Receive
gr
ow
th
• Hands-on legal training
• Training in law practice management
• Help establishing alternative billing
models
• Subsidized office space/equipment
• Access to client referral programs
• Networking opportunities
• Free CLE, bar dues, mentorship fees
• Free legal research tools, forms bank
• Low-cost malpractice insurance
Who can apply?
• Licensed attorneys with up to three years of practice
• Visit www.nmbar.org/ECL to apply, for the official
Program Description and additional resources.
Ac
app ceptin
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Jun ugh
e 1.
FOUNDATION
For more information, contact Stormy Ralstin at 505-797-6053.
Bar Bulletin - March 23, 2016 - Volume 55, No. 12 13
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Published Opinions
Effective March 11, 2016
No. 33902 7th Jud Dist Soccorro LR-13-3, STATE v J MAXWELL (reverse and remand)
3/10/2016
Unublished Opinions
No. 34710 2nd Jud Dist Bernalillo CV-14-5358, J BARNCASTLE v B CLARK (affirm)
3/07/2016
No. 34838 12th Jud Dist Lincoln JR-14-32, STATE v NICHOLAS G (affirm)
3/07/2016
No. 34939 2nd Jud Dist Bernalillo CR-13-4730, STATE v D MAHO (reverse)
3/07/2016
No. 34947 2nd Jud Dist Bernalillo CV-13-4066, DEUTSCH BANK v S ROBINSON-VANN (affirm)
3/07/2016
No. 34937 2nd Jud Dist Bernalillo CR-12-4119, STATE v K MCNEW (affirm)
3/07/2016
No. 34940 2nd Jud Dist Bernalillo CR-11-1041, STATE v J LINAM (affirm)
3/07/2016
No. 34895 2nd Jud Dist Bernalillo CV-11-8351, P LUCERO v GMAC MORTGAGE (affirm)
3/08/2016
No. 35031 11th Jud Dist San Juan CV-14-842, C TSOSIE v NMPD (dismiss)
3/08/2016
No. 35066 2nd Jud Dist Bernalillo CV-13-10076, SUBURBAN MORTGAGE v M DURAN (affirm) 3/08/2016
No. 34756 2nd Jud Dist Bernalillo CV-12-9404, J BASSETT v NM RACING COMM (dismiss)
3/09/2016
No. 34847 2nd Jud Dist Bernalillo CR-95-1311, STATE v K JUDD (dismiss)
3/09/2016
No. 34993 2nd Jud Dist Bernalillo CV-15-3993, R BOUGHTON v COMMUNITY HOUSING (dismiss)
3/09/2016
No. 34363 3rd Jud Dist Dona Ana CR-11-223, STATE v J VALLEJOS (affirm in part, vacate in part and remand) 3/10/2016
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
14
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Clerk’s Certificate of
Withdrawal
Clerk’s Certificate of
Admission
Effective March 7, 2016:
David Baca Jr.
267 El Rey Drive
Corrales, NM 87048
On March 8, 2016:
F. Leighton Durham III
Kelly, Durham & Pittard LLP
601 Haines Avenue
Dallas, TX 75208
214-945-8000
214-946-8433 (fax)
Effective March 7, 2016:
Kathleen Baca
267 El Rey Drive
Corrales, NM 87048
Effective March 7, 2016:
Jalynn M. Clayton
6901 Sandlewood Place NE
Albuquerque, NM 87111
Effective March 4, 2016:
Frank M. Dougherty
6680 E. Placita Alhaja
Tucson, AZ 85750
Effective March 4, 2016:
Daniel J. Pearlman
1310 Escalante Street
Santa Fe, NM 87505
On March 8, 2016:
Marcy Melton Erwin
Craig, Terrill, Hale &
Grantham, LLP
9816 Slide Road, Suite 201
Lubbock, TX 79424
806-744-3232
806-744-2211 (fax)
[email protected]
On March 8, 2016:
Blair I. Fassburg
Rincon Law Group, PC
1014 North Mesa, Suite 200
El Paso, TX 79902
915-532-6800
915-532-6808 (fax)
[email protected]
com
On March 8, 2016:
R. Matthew Graham
Wilson, Henderson, Smith,
Bryant & Graham
2280 North Greenville Avenue
Richardson, TX 75082
972-855-6400
972-855-6418 (fax)
[email protected]
On March 8, 2016:
Azucena Rascón
8915 Federal Blvd. #203
Westminster, CO 80260
505-615-6764
[email protected]
On March 8, 2016:
Robert Ellington White
Childs Bishop & White PC
230 W 3rd Street
Odessa, TX 79761
432-580-5421
432-337-5465 (fax)
[email protected]
On March 8, 2016:
Jesse Howard Witt
Witt Law Firm
PO Box 18900
Boulder, CO 80308
303-216-9488
303-216-9489 (fax)
[email protected]
Clerk’s Certificate
of Disbarment
Effective March 2, 2016:
Rita Neumann
1850 North Solano Drive
Las Cruces NM 88001
575-647-3778
[email protected]
Bar Bulletin - March 23, 2015 - Volume 55, No. 12
15
Recent Rule-Making Activity
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective March 9, 2016
Pending Proposed Rule Changes
Open for Comment:
Comment Deadline
Please see the special summary of proposed rule amendments
published in the March 9 issue of the Bar Bulletin. The actual text
of the proposed rule amendments can be viewed on the Supreme
Court’s website at the address noted below. The comment deadline
for those proposed rule amendments is April 6, 2016.
Recently Approved Rule Changes Since
Release of 2015 NMRA:
Second Judicial District
Court Local Rules
LR2-400 Case management pilot program
for criminal cases.
02/02/16
For 2015 year-end rule amendments that became effective December 31, 2015, and that will appear in the 2016 NMRA, please see
the November 4, 2015, issue of the Bar Bulletin or visit the New
Mexico Compilation Commission’s website at http://www.nmcompcomm.us/nmrules/NMRules.aspx.
To view all pending proposed rule changes (comment period open or closed),
visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website
at http://www.nmcompcomm.us.
16
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
From the New Mexico Supreme Court
Opinion Number: 2015-NMSC-036
No. S-1-SC-34974 (filed December 17, 2015)
CATHY MOSES and PAUL F. WEINBAUM,
Plaintiffs-Petitioners,
v.
HANNA SKANDERA, Designate Secretary of Education,
New Mexico Public Education Department,
Defendant-Respondent,
and
ALBUQUERQUE ACADEMY, et al.,
Defendants/Intervenors-Respondents.
ORIGINAL PROCEEDING ON CERTIORARI
SARAH M. SINGLETON, District Judge
CHRISTOPHER L. GRAESER
FRANK SUSMAN
GRAESER & MCQUEEN, LLC
Santa Fe, New Mexico
for Petitioners
ALBERT V. GONZALES, Deputy General Counsel
NEW MEXICO PUBLIC EDUCATION
DEPARTMENT
Santa Fe, New Mexico
SUSAN M. HAPKA
SUTIN, THAYER & BROWNE, P.C.
Albuquerque, New Mexico
for Respondent
Opinion
Edward L. Chávez, Justice
{1}Intervenors’ motion for rehearing is
denied. However, our prior opinion filed
on November 12, 2015 is withdrawn and
the following is substituted in its place.
{2} Since the adoption of the New Mexico
Constitution on January 21, 1911, New
Mexico has had a constitutional responsibility to provide a free public education for all children of school age. N.M.
R.E. THOMPSON
EMIL J. KIEHNE
JENNIFER G. ANDERSON
SARAH M. STEVENSON
MODRALL, SPERLING, ROEHL,
HARRIS & SISK, P.A.
Albuquerque, New Mexico
ERIC S. BAXTER
BECKET FUND FOR RELIGIOUS
LIBERTY
Washington, DC
for Intervenors-Respondents
Const. art. XII, § 1. However, “no part
of the proceeds arising from the sale or
disposal of any lands granted to the state
by congress, or any other funds appropriated, levied or collected for educational
purposes, shall be used for the support
of any sectarian, denominational or private school, college or university.” N.M.
Const. art. XII, § 3 (emphasis added).
The New Mexico Department of Public
Education’s (Department) Instructional
Material Bureau purchases non-religious
instructional materials selected by public
or private schools, with funds appropriated
by the Legislature and earmarked for the
schools, and lends these materials to qualified students who attend public or private
schools. NMSA 1978, § 22-15-7 (2010);
see also NMSA 1978, § 22-8-34 (2001).
The question we address in this case is
whether the provision of books to students
who attend private schools violates Article
XII, Section 3. We conclude that the New
Mexico Constitutional Convention was
not willing to navigate the unclear line
between secular and sectarian education, or the unclear line between direct
and indirect support to other than public
schools. Indeed, in 1969 the voters rejected
a proposed constitutional amendment
that would have required New Mexico to
provide free textbooks to all New Mexico
school children. See Proposed New Mexico
Constitution (as adopted by the Constitutional Convention of 1969) 45 (October 20,
1969). We hold that the plain meaning and
history of Article XII, Section 3 forbids
the provision of books for use by students
attending private schools, whether such
schools are secular or sectarian.
I.The Instructional Material Law is
funded by appropriations
{3}The Instructional Material Law
(IML), NMSA 1978, §§ 22-15-1 to -14
(1967, as amended through 2011), grants
the Department’s Instructional Material
Bureau statutory authority to lend approved instructional materials1 to “[a]ny
qualified student . . . attending a public
school, a state institution or a private
school approved by the department in any
grade from first through the twelfth grade
of instruction . . . .” Section 22-15-7(A)
(emphasis added). “Instructional material
shall be distributed to school districts, state
institutions and private schools as agents
for the benefit of students entitled to the
free use of the instructional material.”
Section 22-15-7(B) (emphasis added). In
turn, “[a]ny school district, state institution or private school as agent receiving
instructional material pursuant to the
Instructional Material Law is responsible
for distribution of the instructional material for use by eligible students and for the
safekeeping of the instructional material.”
Section 22-15-7(C) (emphasis added).
1 “ ‘[I]nstructional material’ means school textbooks and other educational media that are used as the basis for instruction, including
combinations of textbooks, learning kits, supplementary material and electronic media.” Section 22-15-2(C); see also § 22-15-3(A)
(“The ‘instructional material bureau’ is created within the department of education [public education department].” (alteration in
original)).
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Students or their parents are “responsible
for the loss, damage or destruction of
instructional material while the instructional material is in the possession of the
student.” Section 22-15-10(B).
{4} The Department is required to publish
a “multiple list” of state-approved instructional materials. Section 22-15-8(A), (B);
§ 22-15-2(D) (“ ‘[M]ultiple list’ means a
written list of those instructional materials
approved by the department.”). Using the
multiple list of state-approved instructional materials, “each school district, state
institution or private school as agent may
select instructional material for the use of
its students . . . .” Section 22-15-8(B). “At
least ten percent of instructional material
on the multiple list concerning language
arts and social studies shall contain material that is relevant to the cultures, languages,
history and experiences of multi-ethnic
students.” Section 22-15-8(A). Moreover,
“[t]he Department shall ensure that parents and other community members are
involved in the adoption process at the
state level.” Id.
{5} The IML is funded through a non-reverting “instructional material fund” established by the State Treasurer “consist[ing]
of appropriations, gifts, grants, donations
and any other money credited to the fund.”
Section 22-15-5(A). In 1931, the Legislature enacted the State School Building,
Text Book and Rural Aid Fund to purchase
instructional materials with unappropriated federal funds obtained through the
Mineral Lands Leasing Act (MLLA), 30
U.S.C. §§ 181 to 287 (1920, as amended
through 2012). N.M. Laws 1931, ch. 138,
§ 2 (“There is hereby appropriated for
the purposes of this fund, annually, all of
the balance, not otherwise appropriated,
in the [MLLA] Fund . . . .”). Today the
Department’s Instructional Material Bureau continues to purchase instructional
materials for New Mexico students using
federal MLLA funds. See § 22-8-34(A)
(“Except for an annual appropriation to
the instructional material fund and to the
bureau of geology and mineral resources
of the New Mexico institute of mining and
technology . . . all other money received by
the state pursuant to the provisions of the
federal [MLLA], shall be distributed to the
public school fund.” (citation omitted)).
{6}Each public and private school is allocated a percentage of money available
in the IML fund based on the number of
students enrolled in their school. Section
22-15-9(A). “Private schools may expend
up to fifty percent of their instructional
18
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material funds for items that are not on
the multiple list; provided that no funds
shall be expended for religious, sectarian or nonsecular materials . . . .” Section 22-15-9(C) (emphasis added). Such
instructional material purchases must
be identified and purchased through the
Department’s in-state depository. Section
22-15-9(C), (E); see also § 22-15-4(D).
“Any balance remaining in an instructional
material account of a private school at the
end of the fiscal year shall remain available
for reimbursement by the department
for instructional material purchases in
subsequent years.” Section 22-15-9(F).
The Department’s Instructional Material
Bureau has the authority to “withdraw or
withhold the privilege of participating in
the free use of instructional material in
case of any violation of or noncompliance
with the provisions of the Instructional
Material Law or any rules adopted pursuant to that law.” Section 22-15-4(C).
{7}In summary, the Legislature appropriates instructional materials funds and
private schools are allocated a percentage of the funds based on the number of
students enrolled in their schools. Private
schools select instructional materials from
a multiple list, but they may spend up to
50 percent of their instructional materials
funds on items that are not on the multiple
list, as long as the material is not religious
in content. Any money remaining in the
private schools instructional material fund
may be carried over to subsequent years.
Once the materials are purchased, the materials are loaned to the students. Hereafter
in this opinion we will refer to this process
as a “schoolbook loan program” for ease of
reference.
II. Procedural history
{8}Plaintiffs-Petitioners Cathy Moses
and Paul F. Weinbaum (Petitioners) are
New Mexico residents and have been
taxpayers for at least the past five years.
Petitioners currently have one or more
children enrolled in elementary and/or
secondary public schools in New Mexico.
As New Mexico residents and taxpayers,
Petitioners assert that the IML violates
their constitutional rights because it supposedly forces them to “support[] and
aid[] the religious dictates of others with
whom they disagree”; appropriates or
donates public funds to private parties;
and supports “sectarian, denominational
or private school[s].”
{9}Petitioners filed a verified complaint
for declaratory judgment in the district
court against Defendant-Respondent
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Hanna Skandera (Respondent), Secretary
of the Department, seeking a declaration that the State issuing instructional
materials to students attending private
schools is unconstitutional because doing
so supports sectarian, denominational,
or private schools in violation of New
Mexico Constitution Article XII, Section
3; forces them as taxpayers to support the
religious dictates of others in violation
of New Mexico Constitution Article II,
Section 11; and appropriates or donates
public funds to private parties in violation of New Mexico Constitution Article
IX, Section 14. Petitioners also relied on
Zellers v. Huff, 1951-NMSC-072, 55 N.M.
501, 236 P.2d 949 to support their allegation that the schoolbook loan program is
unconstitutional.
{10} Petitioners filed a motion for summary judgment, and Respondent and
Albuquerque Academy, et al. (Intervenors)
each filed a memorandum in opposition.
The district court ruled that Zellers did
not control and the provisions of the IML
challenged by Petitioners did not violate
the New Mexico Constitution. The district court then entered its order denying
Petitioners’ motion for summary judgment and granted summary judgment to
Respondent.
{11} Petitioners appealed to the Court
of Appeals, which affirmed the district
court’s grant of summary judgment to
Respondent. Moses v. Skandera, 2015NMCA-036, ¶¶ 3, 54, 346 P.3d 396, cert.
granted, 2015-NMCERT-001. We granted
Petitioners’ petition for writ of certiorari to
consider the following issues: (1) whether
this Court’s decision in Zellers constituted
dicta; (2) whether the IML violates Article
XII, Section 3 of the New Mexico Constitution; (3) whether the IML violates
Article IV, Section 31 of the New Mexico
Constitution; (4) whether the IML violates
Article IX, Section 14 of the New Mexico
Constitution; and (5) whether the IML
violates Article II, Section 11 of the New
Mexico Constitution.
{12} We conclude that the schoolbook
loan program violates Article XII, Section 3, and therefore we do not address
the remaining issues. We reverse both the
Court of Appeals and the district court.
III.The IML violates Article XII,
Section 3 of the New Mexico
Constitution
{13} Article XII, Section 3 provides:
The schools, colleges, universities and other educational
institutions provided for by this
Advance Opinions
constitution shall forever remain
under the exclusive control of the
state, and no part of the proceeds
arising from the sale or disposal
of any lands granted to the state
by congress, or any other funds
appropriated, levied or collected
for educational purposes, shall
be used for the support of any
sectarian, denominational or private school, college or university.
(Emphasis added.)
{14} Whether the schoolbook loan program violates the New Mexico Constitution is a question of law that we review de
novo. Tri-State Generation & Transmission
Ass’n v. D’Antonio, 2012-NMSC-039, ¶ 11,
289 P.3d 1232. “It is well settled that there
is a presumption of the validity and regularity of legislative enactments.” Bounds v.
State ex rel. D’Antonio, 2013-NMSC-037,
¶ 11, 306 P.3d 457 (internal quotation
marks and citations omitted). Petitioners
bear the burden of proof to overcome the
presumption of the validity and regularity of the IML. Id. We will uphold the
constitutionality of the IML unless we are
satisfied beyond all reasonable doubt that
the Legislature exceeded the bounds of the
New Mexico Constitution in enacting the
IML. Id.
{15} “[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
868 (internal quotation marks and citation
omitted).
{16} The Court of Appeals interpreted
Article XII, Section 3 to provide protection
only against the establishment of religion,
similar to the Establishment Clause of the
First Amendment to the United States
Constitution and the Establishment Clause
of Article II, Section 11 of the New Mexico
Constitution. Moses, 2015-NMCA-036,
¶ 22. Accordingly, the Court of Appeals
relied primarily on First Amendment cases
to hold that the IML did not violate Article
XII, Section 3. Moses, 2015-NMCA-036, ¶
34 (citing Elane Photography, LLC v. Willock, 2012-NMCA-086, ¶ 33, 284 P.3d 428).
{17} We might agree with the Court of
Appeals if the language of Article XII,
Section 3 only prohibited the use of any
http://www.nmcompcomm.us/
public funds for the support of sectarian
or denominational schools. The plain
language of Article XII, Section 3 is more
restrictive, and it therefore stands as a
constitutional protection separate from the
Establishment Clause as illustrated by the
difference in language in each provision.
{18} The Establishment Clause provides,
in relevant part, that “Congress shall make
no law respecting an establishment of religion . . . .” U.S. Const. amend. I. In contrast,
Article XII, Section 3 provides:
The schools, colleges, universities
and other educational institutions
provided for by this constitution
shall forever remain under the exclusive control of the state, and no
part of the proceeds arising from
the sale or disposal of any lands
granted to the state by congress,
or any other funds appropriated,
levied or collected for educational
purposes, shall be used for the
support of any sectarian, denominational or private school, college
or university.
(Emphasis added.) The plain language of
Article XII, Section 3 expressly restricts
the use of public funds to other than sectarian schools, and therefore our analysis
cannot be restricted by cases that analyze
the Establishment Clause.
{19} The historical context in which
Article XII, Section 3 was adopted helps
explain why this constitutional provision
was not a recodification of the Establishment Clause of the New Mexico Constitution. During the early nineteenth century,
public education was provided in public
schools known as “common schools.” See
Mark Edward DeForrest, An Overview and
Evaluation of State Blaine Amendments:
Origins, Scope, and First Amendment
Concerns, 26 Harv. J.L. & Pub. Pol’y 551,
558 (2003). “The common school was designed to function as an instrument for the
acculturation of immigrant populations,
rendering them good productive citizens
in the image of the ruling majority.” Joseph
P. Viteritti, Blaine’s Wake: School Choice,
The First Amendment, and State Constitutional Law, 21 Harv. J.L. & Pub. Pol’y 657,
668 (1998). “Protestant ministers and lay
people were in the forefront of the publicschool crusade and took a proprietary
interest in the institution they had helped
to build. They assumed a congruence of
purpose between the common school
and the Protestant churches.” Id. (internal
quotation marks and citation omitted). “In
many cases, it was difficult to distinguish
between public and private institutions because they were often housed in the same
building.” Id. at 664. State statutes at the
time authorized Bible readings in public
schools and state judges generally refused
to recognize the Bible as a sectarian book.
G. Alan Tarr, The New Judicial Federalism
in Perspective, 72 Notre Dame L. Rev. 1097,
1103-04 nn.22-23 (citing Miss. Const. of
1890, art. 3, § 18); Hackett v. Brooksville
Graded Sch. Dist., 87 S.W. 792 (Ky. 1905);
Donahoe v. Richards, 38 Me. 379 (1854));
Viteritti, supra, at 667-68.
{20} By the middle of the nineteenth
century, the Catholic immigrant population rose significantly. Viteritti, supra, at
669. The influx of Catholic immigrants
created a demand for Catholic education,
and consequently Catholics and other
minority religionists challenged the Protestant influence in the common schools.
Id. at 667-68; Steven K. Green, The Blaine
Amendment Reconsidered, 36 Am. J. Legal
Hist. 38, 44 (1992). By the 1870s, Catholic
church leaders began to lobby their state
legislatures for public funds to develop
their own educational system. Viteritti,
supra, at 668; Green, supra, at 44. This rise
in Catholic influence created an obvious
tension between the Protestant majority
and the mostly Catholic minority on the
issue of education, see Viteritti, supra, at
670-72, because the Protestant-run “common school was designed to function as
an instrument for the acculturation of
immigrant populations, rendering them
good productive citizens in the image of
the ruling majority.” Id. at 668.
{21} In response, “[o]pposition to aid to
‘sectarian’ schools acquired prominence in
the 1870’s . . . .” Mitchell v. Helms, 530 U.S.
793, 828 (2000). “[I]t was an open secret
that ‘sectarian’ was code for ‘Catholic.’ ”
Id. Common school leaders successfully
lobbied their state legislatures to adopt
amendments prohibiting the use of state
funds to support sectarian schools by the
mid-to-late nineteenth century. See, e.g.,
Colo. Const. art. IX, § 7; Del. Const. art.
X, § 3; N.D. Const. art. VIII, §§ 1, 5; Ohio
Const. art. VI, § 2. “In September of 1875,
President Ulysses S. Grant responded
to mounting political pressure when
he publicly vowed to ‘[e]ncourage free
schools, and resolve that not one dollar
be appropriated to support any sectarian
schools.’ ” Viteritti, supra, at 670 (alteration in original). President Grant called
on Congress to draft a proposed constitutional amendment that would deny public
support to religious institutions. Id.
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Advance Opinions
{22} Congressman James G. Blaine of
Maine agreed to sponsor an amendment
to the First Amendment that fulfilled
President Grant’s request. See id. at 670-71.
Congressman Blaine’s proposed constitutional amendment read:
No State shall make any law
respecting an establishment of
religion, or prohibiting the free
exercise thereof; and no money
raised by taxation in any State
for the support of public schools,
or derived from any public fund
therefor, nor any public lands devoted thereto, shall ever be under
the control of any religious sect;
nor shall any money so raised
or lands so devoted be divided
between religious sects and denominations.
Green, supra, at 38 n.2 (quoting 4 Cong.
Rec. 5453 (1876) (quotation marks omitted)). Congressman Blaine believed that
his proposed constitutional amendment
would correct a “constitutional defect”
because at the time, the Establishment
Clause had not been interpreted to apply to the states under the Fourteenth
Amendment. Viteritti, supra, at 671 n.66
(citing Permoli v. Municipality No. 1 of New
Orleans, 44 U.S. (3 How.) 589, 609 (1845)
(“The Constitution makes no provision
for protecting the citizens of the respective
states in their religious liberties; this is left
to the state constitutions and laws . . . .”).
{23} Despite the fact that Congressman
Blaine’s proposed amendment failed to
pass in the United States Senate, several
states amended their constitutions to include a ban on funding of sectarian education. Viteritti, supra, at 672. “By century’s
end [congressional] leaders had come
to understand that federal aid could be
used as a wedge for manipulating public
policy. . . . Particularly vulnerable to the
Republican agenda were those new territories seeking statehood.” Id. at 672-73.
“As a matter of course, [new territories
seeking statehood] would be required to
incorporate Blaine-like provisions into
their new constitutions in order to receive
congressional approval.” Id. at 673.
{24} Congress granted New Mexico
statehood on the explicit condition that it
adopt a similar “Blaine” provision in the
New Mexico Constitution. See Enabling
http://www.nmcompcomm.us/
Act for New Mexico of June 20, 1910, 36
Stat. 557, ch. 310, § 8 (Enabling Act).2 In
the Enabling Act, “Congress set forth the
terms by which New Mexico would be admitted as a state.” Forest Guardians v. Powell, 2001-NMCA-028, ¶ 6, 130 N.M. 368,
24 P.3d 803. In an election held on January
21, 1911 to vote on the New Mexico Constitution adopted by the Constitutional
Convention of 1910, New Mexico voters
ratified all of the terms of the Enabling Act
in Article 21, Section 9 of the 1911 New
Mexico Constitution. See Constitutions of
New Mexico 1910-34. Article 21, Section
10 of the 1911 New Mexico Constitution
provides that “[t]his ordinance is irrevocable without the consent of the United
States and the people of this State, and no
change or abrogation of this ordinance,
in whole or in part, shall be made by any
constitutional amendment without the
consent of Congress.” Id.; Enabling Act
§ 2; see also N.M. Const. art. 21, §§ 1-11
(incorporating all Enabling Act measures
into the New Mexico Constitution and
making the Enabling Act irrevocable
without the consent of Congress and the
citizens of New Mexico). Because the
Enabling Act was adopted during New
Mexico’s 1910 Constitutional Convention,
N.M. Const. art. 21, §§ 1-11, it functions as
a “fundamental law to the same extent as if
it had been directly incorporated into the
Constitution.” State ex rel. King v. Lyons,
2011-NMSC-004, ¶ 3, 149 N.M. 330, 248
P.3d 878 (internal quotation marks and
citation omitted).
{25} Sections 6 through 9 of the Enabling
Act pertain to specified public lands that
were granted to New Mexico to be held in
trust “for the support of common schools.”
Enabling Act § 6. To the extent that lands
“are mineral, or have been sold, reserved or
otherwise appropriated or reserved by or
under the authority of any act of congress,”
they are to be treated as all other public
lands specified under Sections 6 through
9 of the Enabling Act. Enabling Act § 6.
Congress contemplated that
any change . . . to the use of the
proceeds of the lands granted to
the state should be effectuated by
amendment to the Constitution,
and . . . any change in the use
and application of the proceeds
of these land grants may . . . be
done by way of a constitutional
amendment.
Lyons, 2011-NMSC-004, ¶ 4 (first and
third omissions in original) (internal
quotation marks and citation omitted).
{26} Grants of land were made to New
Mexico specifically for, among other
things, “university purposes, . . . schools
and asylums for the deaf, dumb and the
blind, . . . normal schools, . . . agricultural
and mechanical colleges, . . . school of
mines, [and] military institutes.” Enabling
Act § 7. Lands granted to New Mexico
and any proceeds derived from them are
to be held in trust. Enabling Act § 10, ¶ 1.
If the lands or money so derived are used
for something other than the named purposes, it is a breach of the Enabling Act.
Enabling Act § 10, ¶ 2. The Enabling Act
“is binding and enforceable and the legislature is without power to divert the fund
for another purpose than that expressed.”
State ex rel. Interstate Stream Comm’n v.
Reynolds, 1963-NMSC-023, ¶ 22, 71 N.M.
389, 378 P.2d 622.
{27} Specifically relevant to our inquiry
is Section 8 of the Enabling Act, which
may be characterized as a Blaine provision because of the time of its adoption
and because it precludes the use of public
funds for the support of sectarian or denominational schools.
[T]he schools, colleges, and universities provided for in this act
shall forever remain under the
exclusive control of the said state,
and no part of the proceeds arising from the sale or disposal of
any lands granted herein for educational purposes shall be used
for the support of any sectarian
or denominational school, college
or university.
Id. This language is nearly identical to that
of Article XII, Section 3, with two critical
differences. The Enabling Act prohibits
the use of “proceeds arising from the sale
or disposal of any lands granted [in the
Enabling Act] for educational purposes”
to support sectarian schools. Enabling
Act § 8. In contrast, the drafters of the
New Mexico Constitution restricted the
use of proceeds from any lands granted to
New Mexico by Congress, not only those
granted in the Enabling Act, and they also
restricted the use of any funds appropri-
2Section 8 of the Enabling Act explicitly requires that
[t]he schools, colleges and universities provided for in this act shall forever remain under the exclusive control of the said state, and
no part of the proceeds arising from the sale or disposal of any lands granted herein for educational purposes shall be used for the
support of any sectarian or denominational school, college or university.
20
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Advance Opinions
ated, levied, or collected for educational
purposes for the support of not only sectarian schools, but also the much broader
category of private schools. Through these
changes, the Constitutional Convention
decided to provide for additional restrictions on public funding of education
beyond the restrictions required by Section 8 of the Enabling Act. See Highlights
of the August 15, 1969, Session of the 1969
Constitutional Convention Submitted
August 14, 1969 at 4. The members of the
Constitutional Convention chose to play
it safe—by broadening the provision to
reach all private schools, they avoided
drawing a line between secular and sectarian education. In addition, they were not
willing to limit the funds that would be
restricted from use for private schools—
they went well beyond “proceeds arising
from the sale or disposal of any lands
granted” under Section 8 of the Enabling
Act and chose to restrict the use of “any
other funds appropriated, levied or collected for educational purposes.” N.M.
Const. art. XII, § 3.
{28} The MLLA appropriates funds to
New Mexico “to be used by such State
and its subdivisions, as the legislature
of the State may direct . . . , for (i) planning, (ii) construction and maintenance
of public facilities, and (iii) provision of
public service.” 30 U.S.C. § 191(a). MLLA
funds are not specifically allocated for
schools or school books. The Legislature,
which has the constitutional responsibility to appropriate funds, see New Mexico
Constitution Article IV, Section 30, has
discretion to appropriate MLLA funds for
any purpose consistent with the broad purposes described in the MLLA. Intervenors
contend that the provision of school books
for children attending both public and private schools constitutes a “public service.”
Although we agree with this broad philosophical statement, the provision of school
books is an educational purpose. Article
XII, Section 3 controls the Legislature’s
discretion when money is appropriated
for educational purposes by prohibiting
the appropriation of educational funds to
private schools.
{29} Intervenors contend that the MLLA
preempts any state constitutional restriction on the Legislature’s discretion with
respect to MLLA funds as long as the Legislature appropriates the funds consistent
with the broad purposes of the MLLA. In
support of their argument, Intervenors cite
to State ex rel. Sego v. Kirkpatrick, 1974NMSC-059, 86 N.M. 359, 524 P.2d 975 and
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Lawrence County v. Lead-Deadwood School
District No. 40-1, 469 U.S. 256 (1985).
These cases are inapposite. The Sego Court
held that the Legislature does not have the
power to control the manner and extent of
the use or expenditure of funds received
by institutions of higher learning from
Congress or from private donations. 1974NMSC-059, ¶¶ 48-51. In Lawrence, the
United States Supreme Court held that a
federal statute specifically providing local
governments with discretion in distributing federal funds preempted a state statute
attempting to control how local governments allocated such funds. 469 U.S. at
261-68. Stated simply, Congress appropriated the funds to local governments, not to
the State; therefore, the State did not have
authority to dictate how local governments
spent the money directly allocated to them
by Congress. Similarly, when Congress
appropriates money to New Mexico institutions of higher learning, under this
Court’s holding in Sego, the Legislature
lacks authority to direct the use of such
funds. The MLLA does not specifically appropriate funds to or for school purposes.
Simply because the MLLA gives discretion
to our Legislature does not mean that the
Legislature is at liberty to ignore state constitutional limitations on its discretion. The
MLLA has neither expressly nor impliedly
preempted the application of Article XII,
Section 3 because restricting funds appropriated for educational purposes to
public schools is not incompatible with the
purposes announced in the MLLA. Thus,
Intervenors’ argument that funds from the
MLLA that are used for the Instructional
Material Fund are federal funds which are
“not subject to state constitutional limitations” is without merit.
{30} The Court of Appeals held that the
direct recipients of the IML financial program are the parents of the children, and
therefore the benefit to private schools is
not direct enough to violate Article XII,
Section 3. Moses, 2015-NMCA-036, ¶ 40.
We can not agree that Article XII, Section
3 only prohibits direct support to private
schools. The broad language of this provision and the history of its adoption and the
efforts to amend it evince a clear intent to
restrict both direct and indirect support
to sectarian, denominational, or private
schools, colleges, or universities. Our
interpretation is supported by the failed
attempt in 1969 of the delegates to the
New Mexico Constitutional Convention
to amend the precursor of Article XII, Section 3. Report of the Constitutional Revision
Commission 158 (1967). Using the Alaska
Constitution as a template, the Constitutional Revision Commission proposed revising the precursor of Article XII, Section
3 to read “[t]he public schools and institutions of the state shall be free from sectarian control. No money shall be paid from
public funds for the direct benefit of any
religious or other private educational institution.” New Mexico Legislative Council
Service, Workbook of Selected Constitutions
Prepared For Delegates to the New Mexico
Constitutional Convention 1969 (July 15,
1969) (emphasis added). This proposed
revision would not have been necessary if
a reasonable interpretation of Article XII,
Section 3 as written only precluded direct
support of sectarian and private schools.
However, the proposed revision was never
submitted to the voters for ratification in
December 1969. See generally Proposed
New Mexico Constitution (as adopted by
the New Mexico Constitutional Convention
of 1969) (October 20, 1969).
{31} Instead, the Constitutional Convention proposed a constitutional amendment
that would address the crux of the question: may public funds be used to provide
free textbooks to all students, including
those who attend private schools? See
id. at 45. The constitutional amendment
submitted to the voters for adoption read:
“The legislature shall provide for a system
of free textbooks for use by school children
of this state. The system shall be administered by the state board of education.” Id.
The Legislative Council Service warned
the Constitutional Convention that “[t]
his [provision] violates the Enabling Act
and conflicts with other provisions of the
proposed constitution.” New Mexico Legislative Council Service, A New Constitution for New Mexico? An Analysis of Major
Changes and Arguments For and Against
43 (October 31, 1969). Specifically, the
Legislative Council Service was concerned
that “[t]his provision requires the state to
indirectly aid and support sectarian and
denominational schools.” Id. Notwithstanding the Legislative Council Service’s
concerns, the Constitutional Convention
submitted this constitutional amendment
to the voters for ratification, which the
voters rejected. See Proposed New Mexico
Constitution at 45; N.M. Const. art. XII, §
3.
{32} The history of Congressman Blaine’s
attempt to amend the United States Constitution coupled with the New Mexico
Enabling Act demonstrates why Article
XII, Section 3 cannot be interpreted under
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jurisprudence analyzing the Establishment
Clause. Article XII, Section 3 must be interpreted consistent with cases analyzing
similar Blaine amendments under state
constitutions. For example, in California
Teachers Ass’n v. Riles, the California
Supreme Court addressed a challenge to
a California law authorizing the Superintendent of Public Instruction to lend
to students attending non-profit, nonpublic schools textbooks used in the public
schools without charge. See generally 632
P.2d 953 (Cal. 1981). Article IX, Section
8 of the California Constitution provided
that “[n]o public money shall ever be appropriated for the support of any sectarian
or denominational school, or any school
not under the exclusive control of the officers of the public schools . . . .” Similar to
Article XII, Section 3 of the New Mexico
Constitution, this constitutional provision
incorporated a Blaine-like amendment for
sectarian and denominational schools, but
it also extended the restriction to nonpublic schools. Additionally, Article XVI,
Section 5 of the California Constitution
provided:
Neither the Legislature, nor any
county, city and county, township, school district, or other
municipal corporation, shall ever
make an appropriation, or pay
from any public fund whatever,
or grant anything to or in aid of
any religious sect, church, creed,
or sectarian purpose, or help to
support or sustain any school,
college, university, hospital, or
other institution controlled by
any religious creed, church, or
sectarian denomination whatever . . . .
{33}In California Teachers Ass’n, the
California Supreme Court was critical of
the “child benefit theory” in light of its state
constitutional provision because the “doctrine may be used to justify any type of aid
to sectarian schools[;] . . . practically every
proper expenditure for school purposes
aids the child.” 632 P.2d at 957, 960 (internal quotation marks and citation omitted).
The California Supreme Court reasoned
that “the application of the ‘child benefit’
theory in this circumstance ‘ignores substance for form, reality for rhetoric, and
would lead to total circumvention of the
principles of our Constitution.’ ” Id. at 963
(emphasis added) (citation omitted). The
California Supreme Court noted that the
broad language of Article IX, Section 8 and
Article XVI, Section 5 of the California
22
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Constitution “do not confine their prohibition against financing sectarian schools in
whole or in part to support for their religious teaching function, as distinguished
from secular instruction.” California
Teachers Ass’n, 632 P.2d at 964 (emphasis
added). As a result, a full majority of the
California Supreme Court concluded that
the textbook program could not survive
state constitutional scrutiny, even if the
benefit to the schools was only incidental.
See id. at 961-62 n.12.
{34}In Gaffney v. State Department of
Education, the Nebraska Supreme Court
addressed the constitutionality of a textbook lending program under Article VII,
Section 11 of the Nebraska Constitution:
Neither the state Legislature nor
any county, city or other public
corporation, shall ever make any
appropriation from any public
fund, or grant any public land
in aid of any sectarian or denominational school or college,
or any educational institution
which is not exclusively owned
and controlled by the state or a
governmental subdivision thereof.
220 N.W.2d 550, 553 (Neb. 1974) (quoting Neb. Const. art. VII, § 11 (emphasis
in original) (internal quotation marks
omitted)). The Nebraska Supreme Court
relied on the broad language of Article VII,
Section 11 of the Nebraska Constitution
to hold that the textbook loan program
unconstitutionally furnished aid to private
sectarian schools. Gaffney, 220 N.W.2d at
557. The Nebraska Supreme Court concluded that the fact that the loan of textbooks was to the parents and students was
not determinative because the program
“lends strength and support to the school
and, although indirectly, lends strength
and support to the sponsoring sectarian
institution.” Id.
{35} The Supreme Courts of Oregon,
Massachusetts, and Missouri interpreted
similar Blaine-like state constitutional provisions and determined that even indirect
aid to the sectarian, denominational, or
private schools violates the constitutional
provision. See Dickman v. Sch. Dist. No.
62C, Or. City, of Clackamas Cty., 366 P.2d
533, 543 (Or. 1961) (en banc) (holding that
“the aid is extended to the pupil only as a
member of the school” the pupil attends,
and although the pupil may share in the
indirect benefit, “such aid is an asset to”
the sectarian or private school); see also
Bloom v. Sch. Comm. of Springfield, 379
N.E.2d 578, 580 (Mass. 1978) (same);
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Paster v. Tussey, 512 S.W.2d 97, 104 (Mo.
1974) (en banc) (same).
{36} South Dakota and Hawaii have
reached similar conclusions under their
state constitutions. This is important because like New Mexico, these states were
required to adopt Blaine-like amendments
into their respective state constitutions
for their admission into the Union. For
example, in In re Certification of a Question of Law from the United States District
Court, District of South Dakota, Southern
Division, the South Dakota Supreme Court
addressed a textbook lending program in
which the defendants raised arguments
similar to those raised by Respondent and
Intervenors in this case. See generally 372
N.W.2d 113 (S.D. 1985). The South Dakota
Supreme Court noted that it was charged
“with the responsibility of interpreting
provisions of [its] state constitution that
are more restrictive than the Establishment
Clause of the United States Constitution.”
Id. at 116, 118 (“[T]hose provisions of our
constitution . . . are not mere reiterations
of the Establishment Clause of the United
States Constitution but are more restrictive
as prohibiting aid in every form.” (internal
quotation marks and citation omitted)).
In ultimately holding that the textbook
loan program was unconstitutional, the
South Dakota Supreme Court specifically
rejected the defendants’ analogy between
the textbook lending program “and the
lending of books by the public libraries in
the state,” because any benefit to sectarian
or private schools violated its state constitutional provision. Id. at 117.
{37} In addition, Hawaii, which was the
last state admitted into the Union, has a
constitutional provision similar to New
Mexico’s. Article X, Section 1 of the Hawaii
Constitution provides: “[N]or shall public
funds be appropriated for the support or
benefit of any sectarian or nonsectarian
private educational institution . . . .” Like
the New Mexico Constitution, the Hawaii
Constitution is more restrictive than the
federal Establishment Clause. In Spears
v. Honda, the Hawaii Supreme Court addressed the constitutionality of a statute
requiring state-subsidized bus transportation for all school children, including
sectarian and private school students. 449
P.2d 130, 132, 135, 135 n.5 (Haw. 1968).
The Court attributed great significance to
the history of what was then Article IX,
Section 1 of the Hawaii Constitution, now
codified as Hawaii Constitution Article X,
Section 1. Spears, 449 P.2d at 134-36. The
Court’s review of the constitutional history
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of Article IX, Section 1 revealed that the
prohibition on using public funds to benefit private schools in Hawaii was intended
to narrow the gap between the quality of
education provided by private schools and
public schools. Spears, 449 P.2d at 132-33,
135 n.5.
{38}The Spears Court concluded that it
was important to understand that, unlike
the Establishment Clause of the United
States Constitution, what was then Article
IX, Section 1 of the Hawaii Constitution
was not exclusively about religion. 449 P.2d
at 137-38. The Court found that
[(1)] the bus subsidy buil[t] up,
strengthen[ed] and ma[d]e successful the nonpublic schools[;
(2)] the subsidy induce[d] attendance at nonpublic schools,
where the school children are
exposed to a curriculum that,
in many cases, if not generally,
promotes the special interests
and biases of the nonpublic
group that controls the school[;
and (3)] to the extent that the
State [paid] out funds to carriers
owned by the nonpublic schools
or agents thereof, the State [gave]
tangible support or benefit to
such schools.
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Id. (internal quotation marks omitted).
The Spears Court ultimately held that the
bus subsidy violated Article IX, Section
1, because it constituted an appropriation
of public funds to non-public schools. Id.
at 139. It is worth noting that the Spears
Court suggested that the Legislature “return to the people to ask them to decide
whether their State Constitution should
be amended to grant the Legislature the
power that it seeks, in this case, the power
to provide ‘support or benefit’ to nonpublic
schools.” Id.
{39} Article XII, Section 3 of the New
Mexico Constitution prohibits the use of
any part of the proceeds from the sale or
disposal of any land granted to the state
by Congress or any other funds appropriated, levied, or collected for educational
purposes for sectarian, denominational
schools. The framers of our Constitution
chose to further restrict the use of public
funds by prohibiting their use for the
support of private schools. As a result, a
public school under the control of the State
can directly receive funds, while a private
school not under the exclusive control of
the State can not receive either direct or
indirect support.
{40} It is clear that private schools in
New Mexico have control of what instruc-
tional materials will be purchased with
their allocation of instructional material
funds. The fact that students who attend
private schools, just like students who attend public schools, are only loaned these
instructional materials is not material
to the analysis. Private schools benefit
because they do not have to buy instructional materials with money they obtain
by tuition or donations and they can divert
such money to other uses in their schools.
Consistent with the rules of statutory construction and the majority of jurisdictions
interpreting similar state constitutional
provisions, the IML violates Article XII,
Section 3 because it provides support to
private schools.
IV.Conclusion
{41} We reverse the Court of Appeals and
the district court and determine that the
IML violates New Mexico Constitution
Article XII, Section 3.
{42} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice,
Retired, Sitting by designation
CHARLES W. DANIELS, Justice
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http://www.nmcompcomm.us/
From the New Mexico Supreme Court
Opinion Number: 2016-NMSC-001
No. S-1-SC-34549 (filed November 19, 2015)
STATE OF NEW MEXICO,
Plaintiff-Respondent,
v.
JEREMY NICHOLS,
Defendant-Petitioner.
ORIGINAL PROCEEDING ON CERTIORARI
CARL J. BUTKUS, District Judge
JORGE A. ALVARADO
Chief Public Defender
B. DOUGLAS WOOD, III
Assistant Appellate Defender
Santa Fe, New Mexico
for Petitioner
Opinion
Richard C. Bosson, Justice
{1}A jury convicted Jeremy Nichols of
child abuse resulting in death or great
bodily harm, finding him guilty on a
theory of negligently permitting medical
neglect of his six-month-old son Kaden
Nichols that allegedly resulted in the child’s
death. Finding the conviction unsupported
by substantial evidence in the record, we
reverse the conviction and dismiss the
charge.
BACKROUND
{2} Alycia Nichols,1 Jeremy Nichols’ wife,
gave birth to Kaden and his twin brother
Bryce in September 2005. The twins were
delivered by Caesarean section after the
doctor made several unsuccessful attempts
to get Kaden into a position where he could
be delivered naturally. Kaden was stuck
in the birth canal for a period of time,
resulting in bruising over the majority of
his body. Alycia described Kaden as “black
and blue from head to toe.”
{3}Because the babies were six weeks
premature at delivery they remained
hospitalized in the neonatal intensive care
unit (NICU) at Presbyterian Hospital in
Albuquerque for several weeks. They both
had a gastroesophageal reflux disorder,
a condition that allows food and acid to
HECTOR H. BALDERAS
Attorney General
M. VICTORIA WILSON
Assistant Attorney General
Santa Fe, New Mexico
for Respondent
come from the stomach into the esophagus
and mouth and causes irritation. They also
had episodes of bradycardia, a condition
that causes the heart rate to drop and
requires “stimulation or oxygen to get it
back up again.”
{4}Kaden was discharged on October
24, 2005, after spending about six weeks
in NICU. Bryce was sent home two weeks
later. Following release from Presbyterian,
the babies continued on medications to
help with the reflux and slept with apnea
monitors that measured breathing and
chest wall movement.
{5} A few months after bringing the babies
home, the parents started noticing little
bruises, identified as petechiae, on both
babies’ arms and legs. At first, the parents
thought the bruising was caused by swaddling the babies too tightly or by the way
they burped the babies or by the way they
held the babies in the air while playing. The
bruising continued, however, and seemed
to be worse on Kaden than on Bryce.
Kaden also had experienced nosebleeds
and bleeding around his gums.
{6}At the babies’ four-month well-child
appointment on January 24, 2006, Alycia
told Dr. Eric Keller, the babies’ pediatrician, that Kaden had a bloody nose almost
every day and some bleeding gums. Dr.
Keller decided not to administer vaccinations to either baby because he was
concerned about the unresolved bleeding
problems.
{7}Dr. Keller referred Kaden to Tricore
Lab and ordered several blood tests. The
blood test results were abnormal, so Dr.
Keller advised the parents to take Kaden
to a hematologist at University of New
Mexico Hospital (UNMH). Shortly after
the referral was made for Kaden, Alycia’s
mother called Dr. Keller’s office and asked
that the doctor also refer Bryce, stating, “Bryce[’s] bruising [is] worse than
Kaden[’s].” Both babies were seen by the
hematologist.
{8}Following the appointment with the
hematologist, UNMH left Alycia a message stating that the blood test results
were normal for both babies. Alycia then
rescheduled the babies’ four-month vaccinations with a nurse at Dr. Keller’s office.
Shortly before that appointment, however,
the parents noticed bruising on Bryce’s
abdomen.
{9} On the morning of March 15, 2006—
two days before Jeremy was criminally
accused of medical neglect—Alycia and
Jeremy took the babies to Dr. Keller’s office for the vaccination appointment and
showed Bryce’s abdominal bruise to the
nurse. The nurse called Dr. Keller. Dr.
Keller asked the parents whether they had
the results from the hematologist appointment and then called UNMH himself to
get a clear answer. Dr. Keller decided not
to administer the shots at that time and
scheduled another exam for the following
week.
{10} That night, Alycia and Jeremy went
out to dinner with relatives. Jeremy’s sister,
Jennifer, babysat Kaden and Bryce at the
Nichols’ apartment. Alycia asked Jennifer
to keep the babies awake until Alycia and
the others returned from dinner because
she wanted the relatives to meet the twins.
She also asked Jennifer to feed the babies
and put them in clean outfits.
{11} After dinner, everyone returned to
the Nichols’ apartment to see the babies.
Both babies were recovering from colds,
and Jennifer informed the parents that
the babies had been a little fussy. Alycia
noticed “[Kaden] was acting very different
than he normally acts.” Alycia took the
babies’ temperatures, which were normal,
and checked on the babies during the
night. She was “worried about [Kaden]
because of how he was acting, and woke
up like every forty five minutes just from
1Alycia Nichols and Jeremy Nichols are divorced. During the course of these proceedings Alycia remarried and changed her
name. However, she was Alycia Nichols at the time the events in this case took place.
24
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worrying, touching him and touching his
tummy to make sure he was still breathing.”
{12} On the morning of March 16—the
day of Kaden’s death—Alycia woke the
babies up at about 6:45 a.m., fed them
bottles, and bathed them. She put the
babies in their room and left around 9:00
a.m. to run errands. She testified that the
babies appeared to be acting normally. “As
far as I can recall, [Kaden] was himself. I
don’t remember him being sick or pale or
anything like that. I remember him just
being himself.”
{13} While Alycia was gone, Jeremy tried
to feed the babies cereal. Bryce ate, but
Kaden would not eat and was blowing
the food out of his mouth. Jeremy said it
appeared that Kaden was hungry but just
could not swallow the food. When Alycia
came home, Bryce was napping and Jeremy
was holding Kaden, who was fussy. Alycia
took a shower and got dressed, and then
at about noon she and Jeremy awoke the
babies to feed them. According to Alycia,
the babies appeared normal, “[p]erfect”
in fact. Alycia then left for a 12:45 hair
appointment at a nearby mall.
{14} Jeremy, in an attempt to calm Kaden,
put on a movie and sat with him on the
couch. According to Jeremy, Kaden would
go “in and out” between being content and
being fussy. Jeremy tried to feed Kaden
a bottle because he thought Kaden was
hungry, but Kaden only took about two
cubic centimeters, which was much less
than he normally took.
{15} When Alycia finished her hair appointment, she called Jeremy to see if she
should go to the store. She could hear
crying in the background, a cry she described as an “I want to be held” cry, not
an inconsolable cry. Jeremy told Alycia that
the boys were acting fussy and asked her
to come straight home.
Emergency Treatment: Kaden
{16} Alycia arrived home approximately
fifteen minutes later, around 3:15 p.m.
When she walked in, Jeremy was rocking
Kaden on the couch, and Bryce was in
his crib. Alycia noticed that Kaden’s legs
seemed “ashy” and thought his diaper
was too tight or that Jeremy was holding
him too tightly. Kaden also appeared to be
lethargic. Alycia took Kaden’s temperature
and it was 95. Jeremy wrapped Kaden in a
blanket and gave him “baby Tylenol.” Five
or ten minutes later, Jeremy and Alycia retook Kaden’s temperature and it was 95.7.
{17} Thinking Kaden was “just sick” and
not in a “life threatening” situation, Alycia
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called her aunt for advice on how to treat
him. Her aunt was a pediatric nurse who
provided healthcare advice by phone.
Alycia was on the phone with her aunt for
about fifteen minutes. While Alycia was on
the phone with her aunt, Jeremy noticed
Kaden’s breathing become increasingly
lighter and Alycia noticed his legs getting
more discolored. Alycia’s aunt advised
Alycia to call 911.
{18} At 3:39 p.m., Alycia called 911. Jeremy began infant CPR on Kaden. While
Alycia was on the phone with the 911
operator, Jeremy told her that Kaden had
stopped breathing.
{19} The paramedics arrived eight minutes later at 3:47 p.m. and went to the back
bedroom where Jeremy was giving Kaden
CPR. Kaden was unconscious, was not
breathing on his own, and had no pulse.
The paramedics initiated CPR, attempted
to ventilate Kaden with a bag-valve mask,
and inserted an intraosseous line to administer medications to the bloodstream.
{20} Having no success with resuscitation, the paramedics transported Kaden
by ambulance to the Lovelace West Mesa
Medical Center (Lovelace). Kaden arrived
at Lovelace at 4:28 p.m. Dr. Sanjay Kholdwadwala, the emergency room doctor who
took over Kaden’s care, continued CPR
and administrated medications but Kaden
never regained consciousness. Kaden was
pronounced dead at 4:47 p.m. An autopsy
of Kaden revealed pooled blood in his
abdomen and a large laceration to his
liver. His cause of death was determined
to be loss of blood associated with blunt
abdominal trauma and the lacerated liver.
Emergency Treatment: Bryce
{21} Bryce was also transported to
Lovelace on March 16. The paramedic attending to Bryce told Alycia that Bryce’s
“vitals were fine” and his temperature and
heart rate were likely elevated because of
the commotion, but Alycia insisted that
he was in need of treatment. She told the
paramedics that “just minutes ago Kaden
looked the same way as Bryce does right
now, and Bryce is heading in the same
direction and whatever is happening to
Kaden is happening to Bryce.” The paramedics finally agreed and transported
Bryce and Alycia in an ambulance to
Lovelace.
{22} Bryce arrived at Lovelace at 4:45
p.m. Dr. Kholdwadwala, after leaving
Kaden, checked Bryce’s vital signs and
ordered a transfer to UNMH for treatment
because Lovelace did not have a pediatric
intensive care unit. Bryce was admitted to
UNMH that day. CT films revealed fluid
around his liver indicating a mild liver
injury. Bryce was discharged from UNMH
on March 21, 2006.
Criminal Charges
{23} On suspicion that the injuries to
both babies were a result of child abuse,
detectives from the Albuquerque Police
Department were dispatched to Lovelace
to conduct an investigation. After several
interviews with both parents and several of
the medical professionals who attended to
Kaden and Bryce, the detectives identified
Jeremy as the sole suspect. On March 17,
2006, the day after Kaden died, Jeremy was
arrested and charged with multiple counts
of first-degree felony child abuse contrary
to NMSA 1978, Section 30-6-1(D)(1)
(2005, amended 2009).
DISCUSSION
{24} Section 30-6-1(D)(1) defines the
crime of child abuse: “Abuse of a child
consists of a person knowingly, intentionally or negligently, and without justifiable
cause, causing or permitting a child to be
. . . placed in a situation that may endanger the child’s life or health.” Abuse of a
child that does not result in death or great
bodily harm is, for the first offense, a thirddegree felony. See § 30-6-1(E). However,
if the abuse results in great bodily harm
to or death of the child, then the offense
is a first-degree felony with a mandatory
sentence of at least eighteen years’ incarceration. See id. (providing that child
abuse resulting in great bodily harm is a
first-degree felony); § 30-6-1(F) (providing
that negligent child abuse resulting in the
death of a child is a first-degree felony);
§ 30-6-1(G) (providing that intentional
child abuse resulting in the death of a child
twelve to eighteen years of age is a firstdegree felony); NMSA 1978, § 31-18-15(A)
(3) (2005, amended 2007) (providing that
the basic sentence for a first-degree felony
is eighteen years imprisonment); see also
§ 30-6-1(H) (providing that child abuse
resulting in the death of a child less than
twelve years of age is a first-degree felony);
§ 31-18-15(A)(1) (providing that the basic
sentence for a first-degree felony resulting
in the death of a child is life imprisonment).
{25} At trial, the State alleged more than
one theory for how Jeremy had placed
Kaden in a situation that endangered his
life and caused his death and a theory of
how Jeremy had placed Bryce in a situation
that endangered him and caused him great
bodily harm. The State’s theories were, in
summary:
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(1) that Jeremy either intentionally or negligently caused or
permitted the fatal abdominal
and liver injuries that resulted in
Kaden’s death; the jury found Jeremy not guilty of all such charges;
(2) that Jeremy either intentionally or negligently caused
endangerment to Kaden by medical neglect, failing to provide or
obtain medical care necessary for
Kaden’s well-being, resulting in
his death or great bodily harm;
the jury also found Jeremy not
guilty of all such charges;
(3) that Jeremy negligently permitted endangerment to
Kaden by the same medical neglect resulting in death or great
bodily harm, for which the jury
found Jeremy guilty of a single
charge;
(4) that Jeremy permitted endangerment to Kaden by medical
neglect not resulting in death or
great bodily harm; the jury found
Jeremy not guilty of this charge;
and
(5) that Jeremy either intentionally or negligently caused or permitted
endangerment to Kaden’s brother, Bryce,
that resulted in great bodily harm; the jury
found Jeremy not guilty of all such charges.
{26} To recapitulate, after a fourteen-day
trial the State was unsuccessful in proving
beyond a reasonable doubt that Jeremy
caused or permitted Kaden’s fatal injuries
or that Jeremy caused endangerment by
medical neglect. Out of multiple charges
and alternative charges, the jury found
Jeremy guilty of a single count: negligently
permitting endangerment by medical neglect resulting in Kaden’s death. Jeremy’s
conviction for permitting medical neglect
of Kaden was based on a theory not of inflicting the fatal injuries but on one of not
providing or obtaining necessary medical
care to save Kaden’s life. The district court
sentenced Jeremy to the basic term of
eighteen years’ imprisonment.
{27} Jeremy appealed his conviction
on several grounds including, relevant
to this opinion, that the jury verdict was
not supported by substantial evidence.
After reviewing the evidence, our Court
of Appeals affirmed Jeremy’s conviction.
State v. Nichols, 2014-NMCA-040, ¶¶ 1,
2, 321 P.3d 937. We granted certiorari.
2014-NMCERT-003.
{28} The theory on which the State
presented its one successful count—neg26
http://www.nmcompcomm.us/
ligently permitting medical neglect—gives
rise to at least one legal issue in the context
of this case where the jury also found
Jeremy not guilty of causing medical neglect. We address that legal issue—and the
hopeless confusion left by conflicting jury
verdicts—in the hope of providing clarity for the benefit of future prosecutions.
We then proceed to the main question:
whether Defendant’s single conviction
finds evidentiary support in the record.
In the context of medical neglect, causing
and permitting define identical criminal
acts, giving rise to conflicting verdicts
in this case
{29} As previously set forth, the State
presented separate charges for causing
endangerment by medical neglect and
permitting endangerment by medical neglect. First, the State charged that Jeremy
“caused” Kaden’s medical neglect (either
intentionally or negligently) by failing
to obtain necessary medical care, which
resulted in Kaden’s death. The jury returned not guilty verdicts on these charges,
thereby establishing a jury finding that
Jeremy did not cause medical neglect.
{30} The State also submitted a charge
that Jeremy negligently “permitted” medical neglect of Kaden. The district court
gave the following instruction:
For you to find Jeremy Nichols
guilty of child abuse resulting
in death or great bodily harm,
. . . the state must prove to your
satisfaction beyond a reasonable
doubt each of the following
elements of the crime:
1. Jeremy Nichols permitted
Kaden Nichols to be placed in a
situation which endangered the
life or health of Kaden Nichols,
to wit: medical neglect;
2. The defendant acted with
reckless disregard and without
justification. To find that Jeremy
Nichols acted with reckless disregard, you must find that Jeremy
Nichols knew or should have
known the defendant’s actions or
failure to act created a substantial
and foreseeable risk, the defendant
disregarded that risk and the defendant was wholly indifferent to
the consequences of the failure to
act or conduct and to the welfare
and safety of Kaden Nichols;
3.Jeremy Nichols was a parent, guardian or custodian of the child, or the defendant had accepted responsibility for the
child’s welfare;
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
4.Jeremy Nichols’s actions or failure to
act resulted in the death of or great bodily
harm to Kaden Nichols;
5.Kaden Nichols was under the age of
18;
6.This happened in New Mexico on or
between the 15th day of March, 2006 and
the 16th day of March, 2006.
{31} The jury, after finding Jeremy not
guilty of causing medical neglect, found
him guilty of negligently permitting medical neglect, meaning that the jury must
have drawn a distinction between causing
and permitting medical neglect. Jeremy, in
a post-trial motion, argued that there was
no meaningful distinction between causing and permitting medical neglect in the
context of this case, thus properly preserving the issue for appellate review. See State
v. Lopez, 2007-NMSC-037, ¶ 15, 142 N.M.
138, 164 P.3d 19 (“In order to preserve an
issue for appeal, a defendant must make a
timely objection that specifically apprises
the trial court of the nature of the claimed
error and invokes an intelligent ruling
thereon.”).
{32} Our courts have repeatedly stated
that “causing” and “permitting” child
abuse are distinct theories, one premised
upon active abuse (causing), the other
upon “the passive act of allowing the abuse
to occur” (permitting). See State v. Cabezuela, 2011-NMSC-041, ¶ 26, 150 N.M.
654, 265 P.3d 705 (quoting State v. Leal,
1986-NMCA-075, ¶¶ 13, 19, 104 N.M.
506, 723 P.2d 977 (internal quotation
marks omitted)). Our Court of Appeals
in Leal held that ordinarily these theories
must be charged in the alternative, unless
“it is not clear who actually inflicted the
abuse, but the evidence shows beyond a
reasonable doubt that the defendant either
caused the abuse or permitted it to occur.”
1986-NMCA-075, ¶¶ 13-14. The exception
recognized in Leal typically would arise
when the evidence shows that a child was
abused in the presence of two or more
caregivers, one who actually inflicted the
abuse while the other stood by, passively
permitting the abuse to take place. See id.
(“Thus, properly charged and proven, the
statute covers the situation where it is not
clear which individual actually inflicted
the injury.”). Absent such evidence the
general rule would apply, that causing and
permitting child abuse are distinct theories
that must be charged in the alternative
when supported by the evidence.
{33} Implicit in Leal’s reasoning is that
causing child abuse is synonymous with
inflicting the abuse, and permitting child
Advance Opinions
abuse refers to the passive act of failing to prevent someone else—a third
person—from inflicting the abuse.2 Put
another way, causing and permitting abuse
correlate with primary and secondary
responsibility for the victim’s injury. By
including both theories in the statute, the
Legislature ensured that both active and
passive abusers would be held equally
responsible.
{34} Causing and permitting abuse seem
to lose their distinction, however, when the
charge is based on a theory of endangerment by medical neglect. In that context,
there is no distinct active and passive, or
primary and secondary, conduct. Medical
neglect, by definition, can only be charged
when someone fails to seek or provide
necessary medical care, a theory that implies passive involvement. See Black’s Law
Dictionary 1196 (10th ed. 2014) (defining
“medical neglect” as “[f]ailure to provide
medical, dental, or psychiatric care that
is necessary to prevent or to treat serious
physical or emotional injury or illness”);
see also § 30-6-1(A)(2) (“‘[N]eglect’” [for
purposes of the child abandonment or
abuse statute] means that a child is without proper parental care and control of
subsistence, education, medical or other
care or control necessary for the child’s
well-being because of the faults or habits of
the child’s parents, guardian or custodian
or their neglect or refusal, when able to do
so, to provide them.”).
{35} Logically, however, permitting
endangerment by medical neglect makes
no sense. A person, acting alone, does not
permit himself or herself to fail to seek
medical care. And in the case of two or
more people present when the medical
neglect occurs, each person independently
either fails to act and is culpable for endangerment by medical neglect, or does not
fail to act in which case there is no neglect.
In both situations, each person who fails to
act is primarily responsible and therefore
must have caused the abuse.
http://www.nmcompcomm.us/
{36} Thus, while causing and permitting
child abuse are in most cases distinct theories that can be charged in the alternative,
in the specific context of endangerment
by medical neglect, charging a defendant
with permitting abuse is likely to cause
confusion. In this case, the State alleged
that Jeremy both caused and permitted
endangerment by medical neglect, without
providing any explanation of the difference
between the two theories. The State cannot
offer a confusing array of evidence, submit
several vague jury instructions on various
potential theories, and leave to the jury the
responsibility of putting it all together to
find a basis for a conviction. Cf., e.g., State
v. Cabezuela, 2015-NMSC-016, ¶ 37, 350
P.3d 1145 (“Part of the fundamental-error
analysis is ‘whether a reasonable juror
would have been confused or misdirected
by the jury instruction.’” (quoting State
v. Sandoval, 2011-NMSC-022, ¶ 13, 150
N.M. 224, 258 P.3d 1016)). As a result, the
verdicts rendered by the jury—not guilty
of causing medical neglect and guilty of
permitting medical neglect—hopelessly
conflict under our legal analysis and preclude any determination of which culpable
act was the actual basis for the jury’s conviction of Jeremy.
{37} However, we need not base our
ultimate decision on the foregoing legal
analysis. Our review of the record demonstrates that the State did not prove, and
indeed presented no evidence to prove,
an essential element in the crime—that
Jeremy’s alleged endangerment by medical neglect actually caused Kaden’s death.
The State also failed to prove that Jeremy
acted “with reckless disregard.” For those
reasons, his conviction must be reversed
and the charges vacated.
The evidence presented does not
establish that medical neglect caused
Kaden’s death
{38} For this Court to uphold a conviction of first-degree child abuse on a theory
of endangerment by medical neglect, the
statute requires proof of causation. In this
case, as the jury was instructed, the State
had to prove that Jeremy’s “actions or failure to act resulted in the death of or great
bodily harm to Kaden Nichols.” Under
the statute, “[i]f the abuse results in great
bodily harm to [or death of] the child, the
[accused] is guilty of a first-degree felony.”
Section 30-6-1(E)-(F). On the other hand,
child abuse by endangerment “that does
not result in the child’s death or great
bodily harm is, for a first offense, . . . a third
degree felony,” § 30-6-1(E), for which the
jury found Jeremy not guilty.
{39} Causation must be proved by substantial evidence. As we recently stated in
State v. Consaul, issued by this Court after
the trial in the case at bar, “[w]ithout any
proof of causation, the charge of criminal
negligence (or now criminal recklessness)
[resulting in death or great bodily harm]
completely fails for lack of substantial
evidence . . . .” 2014-NMSC-030, ¶ 49, 332
P.3d 850. To illustrate, under the State’s
overarching, yet unsuccessful, theory of
culpability—that Jeremy inflicted the liver
injury—proving causation would not have
been a problem. The medical evidence
clearly established a connection between
the liver injury and Kaden’s death. But the
jury found Jeremy not guilty of inflicting
the liver injury.3
{40} Under a theory of medical neglect
that results in death or great bodily harm,
the State must prove more than just the
neglect itself. In this case, the State was
required to put forth substantial evidence
that Jeremy’s neglect “resulted in” Kaden’s
death or great bodily harm, meaning that
medical neglect was at least a significant
cause of his death or great bodily injury.
See Consaul, 2014-NMSC-030, ¶¶ 48-49;
see also UJI 14-251 NMRA (requiring the
jury to find in a homicide case that “[t]he
act of the defendant was a significant cause
of the death of [the victim]”). In other
words, the State needed medical evidence
that if Jeremy had obtained medical care
2The latter notion that permitting child abuse requires evidence of an active abuser is reflected in our caselaw. Accord, e.g., State v.
Lopez, 2007-NMSC-037, ¶¶ 8, 35 (affirming the defendant-mother’s convictions of negligently permitting child abuse when the father
admitted that he had dropped the infant-victim after throwing her into the air and hitting her against the ceiling); State v. Vasquez,
2010-NMCA-041, ¶¶ 1-2, 148 N.M. 202, 232 P.3d 438 (affirming the defendant-mother’s conviction for negligently permitting child
abuse at the hands of the victim’s father); but cf., State v. Trossman, 2009-NMSC-034, ¶ 24, 146 N.M. 462, 212 P.3d 350 (reversing
defendant’s conviction for negligently permitting child abuse where there was no evidence of active abuse (exposure to chemicals
used to manufacture methamphetamine) by another).
3We note that even with respect to its charge that Jeremy inflicted the fatal injuries, the State also relied on a theory of child abuse
by endangerment under Section 30-6-1(D)(1): that Jeremy “caused Kaden Nichols to be placed in a situation that endangered the life
or health of Kaden Nichols.” We do not reach the propriety of that theory under the evidence presented in this case, but we note that
Section 30-6-1(D)(2) would be a better fit. See id. (“Abuse of a child consists of a person knowingly, intentionally or negligently . . .
causing or permitting a child to be . . . tortured, cruelly confined or cruelly punished . . . .”).
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
27
Advance Opinions
earlier, Kaden would have lived or at least
would have had a significantly greater
chance of living—evidence that the alleged
neglect actually contributed to the tragic
result. But the State never offered any such
evidence.
{41} Kaden’s autopsy revealed that the
cause of death was loss of blood associated
with blunt abdominal trauma and a lacerated liver. Dr. Jeff Nine, the forensic pathologist who supervised Kaden’s autopsy,
testified that “there was a large laceration
. . . mean[ing] that something, a blunt object of some sort, had struck the decedent
or the decedent had struck a blunt object
that caused pressure on the abdomen so
severely that it broke the liver essentially
in half from the back to the front.”
{42} Dr. Nine testified that it is possible to
survive a severe liver injury with the right
kind of treatment, but stated he “[did not]
think someone could have survived this
injury without pretty extensive medical
intervention because that’s a laceration
that goes all the way through the liver.” Dr.
Shawn Ralston, the pediatric hospitalist
who treated Bryce, testified that a liver can
repair itself without surgery but that such
injuries often require a blood transfusion
to replace the blood that is lost.
{43} This is evidence that liver injuries
may be treatable, but sheds no light on
when that intervention would have been
necessary to save Kaden or give him an
appreciably better chance of survival.
Had Dr. Nine or Dr. Ralston been asked
to testify that two hours, one hour or
even twenty minutes would have made a
material difference in Kaden’s chance of
survival, then the jury would have had
some factual basis for its decision to convict Jeremy of a crime resulting in death.
But there was no such testimony, and we
wonder whether any medical expert could
have provided such testimony.
{44} Without such testimony, the jury
was left to speculate that if Jeremy had
called 911 sooner, then perhaps the doctors
would have had time to diagnose Kaden’s
condition and treat him successfully, such
as with a blood transfusion, to prevent him
from bleeding to death. Indeed, the prosecutor invited the jury to speculate. During
closing argument, all the prosecutor could
say about medical neglect was:
http://www.nmcompcomm.us/
And maybe, as you heard from the testimony, maybe had Kaden gotten medical attention after [his liver] injury was
inflicted on him, maybe he would have
survived as Bryce did. Bryce’s injuries, of
course, were not as severe as Kaden’s, but
perhaps Kaden would have been able to
celebrate his first birthday.
{45} Clearly, a suggestion that “maybe” or
“perhaps” something would or would not
have happened, even if based on evidence,
is not probative of anything. It is certainly
not probative beyond a reasonable doubt
that something would have happened—in
this case the statutory element included in
the jury instruction that “Jeremy Nichols’
actions or failure to act resulted in the
death of or great bodily harm to Kaden.”
Without some evidence to establish that
causal connection, we are left with no more
than medical neglect in a vacuum, which
can constitute criminal endangerment, but
not a first-degree felony.4 See § 30-6-1(E)
(“A person who commits abuse of a child
that does not result in the child’s death or
great bodily harm is, for a first offense,
guilty of a third degree felony . . . .”).
{46} Our review of the trial transcript
brings one possible reason for the lack of
causation evidence to light. This trial was
really never about medical neglect; it was
about the State’s theory that Jeremy battered Kaden. The State pointed repeatedly
to evidence of bruising and similar injuries
on both children over time, and the State
blamed Jeremy. The State’s theory of the
fatal liver injury was that Jeremy, acting
alone, caused it during the last three hours
of Kaden’s life before Alycia’s last-minute
return, when both children were alone
with Jeremy. The State argued,
The Defendant, for whatever
reason, and there doesn’t have to
be a reason, took the life of Kaden
Nichols on March 16th of ‘06.
Whether he was being fussy because he wasn’t eating because he
couldn’t use a spoon yet, because
he was just tired, Defendant was
tired of watching after the kids.
He took care of those kids for
about six hours. Alycia was home
for a short portion of that time,
checked on the kids, they were
fine. The evidence that you have
in front of you is that those kids
were fine at 12:30 before Alycia
left. Alycia didn’t kill Kaden, the
Defendant killed Kaden and the
Defendant caused those injuries
to Bryce that day on March 16th
of 2006.
{47} Only then, almost as an afterthought
to her closing, did the prosecutor speculate
that “maybe” Kaden would have survived
if he had gotten medical attention “after
that injury was inflicted on him.” Those
few lines in the State’s closing argument
are the only mention of medical neglect
in the State’s entire closing. The rest was
all about battery—inflicting the liver injury. And, of course, the jury returned a
not-guilty verdict on that battery charge.
Because the State lost the jury on its principal theory and failed to offer substantial
evidence to prove its fall-back position,
the State cannot be heard to complain.
Jeremy’s conviction must be reversed and
the charges against him vacated for lack of
substantial evidence.
The State did not present substantial
evidence to establish beyond a
reasonable doubt that Jeremy acted
with reckless disregard
{48} In addition to proving causation,
the State had to offer substantial evidence
that Jeremy’s conduct, in failing to provide
medical care early enough, amounted
to reckless disregard for the welfare and
safety of Kaden. As stated above, the jury
was instructed that “[t]o find that Jeremy
Nichols acted with reckless disregard,
you must find that Jeremy Nichols knew
or should have known [his] . . . failure to
act created a substantial and foreseeable
risk, [he] disregarded that risk and . . . was
wholly indifferent to the consequences of
his failure to act.”
{49} If the jury had found that Jeremy
inflicted the blows that lacerated Kaden’s
liver, or that he was on notice that someone else had inflicted those blows, then
Jeremy would have been on notice of the
need for medical care. He would have observed the resulting symptoms in Kaden
and, more importantly, he would have
been on notice that those symptoms were
serious and required immediate medical
attention. Had Jeremy failed to act under
those circumstances, the jury could easily
4We note the novelty of the State’s theory of medical neglect as a form of child endangerment. While we do not find the theory
objectionable on its face, this case demonstrates the care that must be taken to ensure that every theory presented to the jury is supported by the evidence. Cf. State v. Montoya, 2015-NMSC-010, ¶ 42, 345 P.3d 1056 (“When a defendant is charged with intentional
child abuse resulting in the death of a child under twelve, the instruction on the lesser-included offense of reckless child abuse should
only be given if the evidence could support such a theory.”).
28
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Advance Opinions
have returned a verdict—supported by
substantial evidence—that Jeremy was
“wholly indifferent” to Kaden’s welfare and
“the consequences of his failure to act.”
But the jury found Jeremy not guilty of
inflicting those blows. And it is undisputed
that during those three hours from noon
to 3:00 p.m. on March 16, 2006, before
Alycia returned home, Jeremy was alone
with the babies; no other adult was present whom Jeremy could have witnessed
inflicting those tell-tale blows. Without
first-hand knowledge of the source or severity of Kaden’s injuries, the State had to
offer other evidence to prove that Kaden’s
symptoms were so clear and obvious that
Jeremy was criminally reckless in failing
to seek immediate medical attention.
{50} In its briefing to this Court, the
State argues that mundane observations
like Kaden’s fussiness and his decreased
appetite should have alerted Jeremy to
Kaden’s need for medical care. Yet this
was a baby with multiple, birth-related
problems and concomitant symptoms
almost his entire life. Kaden had been
taken to regular medical appointments
as well as to specialized follow-up appointments. The day before his death,
both parents took Kaden to a medical
appointment at which his symptoms
were discussed with medical personnel.
http://www.nmcompcomm.us/
That night the babysitter, who was Jeremy’s sister, and other family members
observed Kaden. The State pointed out
in closing argument that on the day of
Kaden’s death, March 16, 2006, Kaden’s
condition, both early in the morning
and at noon, appeared to Alycia to be
unremarkable. Alycia saw no need to
call for any medical assistance. If Jeremy
was criminally reckless earlier that day or
before, then it would appear so too were
Alycia and perhaps others.
{51} No one called for emergency assistance until around 3:00 that afternoon,
when Kaden’s breathing began to falter.
On what evidence then, was the jury to
have concluded that Jeremy was guilty of
“reckless disregard” and being “wholly indifferent to the consequences of his failure
to act”? Nothing in this record provides a
satisfactory answer to that question. We
cannot write an opinion saying that an
infant’s fussiness and lack of appetite are
of such moment that a parent’s failure to
call 911 might put him in jail for felony
child abuse. And, as we have previously
explained, any theory that Jeremy was
reckless for not calling 911 during the time
when he had exclusive control from noon
until 3:00 p.m. is inconsistent with the jury
finding him not guilty of inflicting the fatal
injuries during that same time.
{52} Based on this record, we cannot
say with any degree of confidence what
evidence would have put Jeremy on notice
of Kaden’s critical need of medical care,
in light of the jury’s finding that Jeremy
did not inflict the injuries that resulted in
Kaden’s death. Even the State’s legal arguments fail to offer any guidance. We are
left utterly confused by the jury’s verdict.
{53} Substantial evidence might have
supported a verdict that Jeremy inflicted
the fatal blow to Kaden’s liver, but the jury
was not so persuaded. Instead, the jury
found that Jeremy was “wholly indifferent”
and “reckless” for not seeking medical care,
a verdict altogether unsupported by substantial evidence in the record. We cannot
sustain any verdict on that basis.
CONCLUSION
{54} We reverse Jeremy Nichols’ child
abuse conviction under Section 30-6-1
and order that the charge be dismissed
with prejudice.
{55} IT IS SO ORDERED.
RICHARD C. BOSSON, Justice,
Retired, Sitting by Designation
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
29
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Certiorari Denied, November 5, 2015, No. 35,550
From the New Mexico Court of Appeals
Opinion Number: 2015-NMCA-118
No. 33,921 (filed October 5, 2015)
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
FERLIN BEN,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
GRANT L. FOUTZ, District Judge
HECTOR H. BALDERAS
Attorney General
Santa Fe, NM
KENNETH H. STALTER
Assistant Attorney General
Albuquerque, New Mexico
for Appellee
JORGE A. ALVARADO
Chief Public Defender
KARL ERICH MARTELL
General Counsel
Santa Fe, New Mexico
for Appellant
Opinion
the first trial. Unpersuaded, we affirm.
BACKGROUND
{3}The scant record from the magistrate
court sets forth the following facts and allegations, which, for our purposes, are not in
dispute. On September 19, 2013, state police
stopped Defendant after observing multiple
traffic violations. Defendant admitted to
drinking “two beers,” performed poorly on
field sobriety tests, and later registered a
breath alcohol concentration (BAC) of .08.
The State charged Defendant in the McKinley
County Magistrate Court with several traffic
offenses, including misdemeanor DWI. That
offense is committed when a person drives
a vehicle with a BAC of .08 or higher (a per
se violation), see § 66-8-102(C)(1), or, in
the alternative, when a person drives while
“under the influence” of intoxicating liquor
or drugs (an impaired to the slightest degree
violation), see § 66-8-102(A).
{4} After a nonjury trial, the court found
Defendant guilty of DWI. Although the
criminal complaint asserted violations of
both subsections of the DWI statute, the
court specified in its judgment and sentence that Defendant violated Subsection
Linda M. Vanzi, Judge
{1} At issue in this appeal is a unique application of the constitutional bar against
retrial after acquittal. Defendant Ferlin Ben
was charged and convicted in a nonjury
trial in magistrate court for driving while
intoxicated (DWI), contrary to NMSA
1978, Section 66-8-102 (2010). Defendant’s
conviction was expressly based on the “per
se” provision of Subsection (C)(1), which
is one of two statutory alternative means
of committing the single offense of DWI.
See State v. Lewis, 2008-NMCA-070, ¶ 27,
144 N.M. 156, 184 P.3d 1050.
{2}After a de novo appeal to the district
court, Defendant was subsequently acquitted of the per se violation and convicted of
the alternative provision in Subsection (A),
which requires a finding of impairment to
the slightest degree. Defendant now contends
that double jeopardy and jurisdictional
principles prevented the State from arguing
impaired DWI to the jury after the magistrate
court failed to convict him on that theory in
(C)(1), which is the per se violation. The
judgment and sentence did not refer to the
impaired DWI provision of Subsection (A).
{5}Defendant sought de novo review in
the district court, where, over Defendant’s
objection, the State alleged both theories
of DWI. A jury convicted Defendant of
impaired DWI under Subsection (A) but
found no violation of per se DWI under
Subsection (C)(1). On appeal, Defendant
now contends that (1) the magistrate court’s
silence as to Subsection (A) impliedly acquitted him of impaired DWI, precluding
the district court’s retrial on that theory
according to principles of double jeopardy,
and (2) the district court lacked jurisdiction
to consider the theory. We review these
related contentions de novo. See Victor v.
N.M. Dep’t of Health, 2014-NMCA-012, ¶
22, 316 P.3d 213; State v. Andazola, 2003NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77.
DISCUSSION
Double Jeopardy
{6} “All appeals from inferior tribunals to
the district courts shall be tried anew in said
courts on their merits, as if no trial had been
had below, except as otherwise provided by
law.” NMSA 1978, § 39-3-1 (1955). By its
own terms, this statute is necessarily subject
to the Constitutions of the United States and
New Mexico, which guarantee that no person shall be “twice put in jeopardy” for the
same offense.1 U.S. Const. amend. V; N.M.
Const. art. II, § 15; NMSA 1978, § 30-1-10
(1963); Ludwig v. Massachusetts, 427 U.S.
618, 631 (1976); State v. Baca, 2015-NMSC021, ¶¶ 2, 21, 46, 352 P.3d 1151 (applying
double jeopardy retrial principles to a de
novo appeal from magistrate court). In
this case, jeopardy attached to the nonjury
trial in the magistrate court “when the trial
judge first start[ed] hearing evidence.” Baca,
2015-NMSC-021, ¶ 46.
{7}The Double Jeopardy Clause operates
to protect an individual from repeated attempts by the state, “with all its resources
and power[,]” to secure a conviction, with
the consequent anxiety, embarrassment, and
undue expense to a defendant that results
from retrial. Cnty. of Los Alamos v. Tapia,
1990-NMSC-038, ¶ 16, 109 N.M. 736, 790
P.2d 1017 (internal quotation marks and
citation omitted), overruled on other grounds
by City of Santa Fe v. Marquez, 2012-NMSC031, ¶ 25, 285 P.3d 637. In common parlance,
the state, upon failing to convict a defendant
1Neither party has argued that there is any difference in the application of the state and federal constitutional provisions to this case. We
therefore “assume the two clauses require the same analysis and result.” State v. O’Kelley, 1991-NMCA-049, ¶ 5, 113 N.M. 25, 822 P.2d 122.
30
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
Advance Opinions
after a full and fair opportunity to do so “is
barred from a second bite of the apple.” State
v. Orosco, 1982-NMCA-181, ¶ 11, 99 N.M.
180, 655 P.2d 1024; see also Burks v. United
States, 437 U.S. 1, 16 (1978) (noting that the
United States Supreme Court necessarily
affords “finality to a jury’s verdict of acquittal—no matter how erroneous its decision”
(emphasis omitted)).
{8}On the other hand, there is no constitutional prohibition against retrial after
a conviction is set aside, except where
the conviction is vacated for insufficient
evidence. State v. Lizzol, 2007-NMSC-024,
¶¶ 13-14, 141 N.M. 705, 160 P.3d 886. The
distinction between retrial after an acquittal
and retrial after a conviction reversed for
trial error has historically been justified on
various rationales, including the legal fiction
of waiver—that a defendant who successfully
appeals his conviction for trial error “waives”
any objection to a second prosecution, see
Trono v. United States, 199 U.S. 521, 53031 (1905), and the doctrine of continuing
jeopardy—that jeopardy terminates upon
an acquittal but continues through an appeal and into the subsequent retrial. Justices
of Bos. Mun. Ct. v. Lydon, 466 U.S. 294, 308
(1984) (“Interests supporting the continuing
jeopardy principle involve fairness to society,
lack of finality, and limited waiver.”).
{9}However justified, these principles
unquestionably govern our state’s two-tier
system of de novo appeals from off-record
inferior courts, including, of course, the
McKinley County Magistrate Court.
A defendant who elects to be tried
[d]e novo . . . is in no different
position than is a convicted defendant who successfully appeals
on the basis of the trial record and
gains a reversal of his conviction
and a remand of his case for a new
trial. Under these circumstances,
it long has been clear that the [s]
tate may reprosecute.
Ludwig, 427 U.S. at 631-32; see also Lydon, 466 U.S. at 309 (“While technically
the defendant is tried again, the second
stage proceeding can be regarded as but
an enlarged, fact-sensitive part of a single,
continuous course of judicial proceedings
during which, sooner or later, a defendant
receives more—rather than less—of the
process normally extended to criminal
defendants in this nation.” (alteration, internal quotation marks, and citation omitted)). Thus, having been convicted—and
not acquitted—of DWI in the magistrate
court, Defendant was in the same position
as any individual who successfully appeals
http://www.nmcompcomm.us/
his conviction for trial error. “Under these
circumstances, it has long been clear that
the [s]tate may reprosecute.” Lydon, 466
U.S. at 305. To escape this conclusion, Defendant divides the single offense of DWI
into its alternative theories, contending
that his conviction in the first trial on one
theory of DWI (the per se theory) necessarily constitutes an implied acquittal on the
alternative theory on which no conviction
was entered (the impaired DWI theory).
{10} The genesis of the modern implied
acquittal doctrine is Green v. United States,
355 U.S. 184 (1957). In Green, the United
States Supreme Court held that a verdict
convicting a defendant of a lesser included
offense of second degree murder, but silent
as to the greater offense of first degree
murder, constituted an implied acquittal of
the greater offense, prohibiting retrial. Id.
at 190-91. In brief, the Court believed the
case was no different, for double jeopardy
purposes, “than if the jury had returned a
verdict which expressly read: ‘We find the
defendant not guilty of murder in the first
degree but guilty of murder in the second
degree.’ ” Id. at 191; see also Price v. Georgia,
398 U.S. 323, 329 (1970) (“[T]his Court has
consistently refused to rule that jeopardy
for an offense continues after an acquittal,
whether that acquittal is express or implied
by a conviction on a lesser included offense
when the jury was given a full opportunity
to return a verdict on the greater charge.”
(footnote omitted)).
{11} Our cases have neither read Green
as broadly as Defendant suggests nor applied Green outside the context of lesser
included offenses. See State v. Torrez, 2013NMSC-034, ¶ 13, 305 P.3d 944 (citing
with approval the observation that “courts
have refused to imply an acquittal unless a
conviction of one crime logically excludes
guilt of another crime” (alteration, internal
quotation marks, and citation omitted));
O’Kelley, 1991-NMCA-049, ¶ 14 (“An
implied acquittal generally occurs when
the jury is instructed to choose between a
greater and a lesser offense, and chooses the
lesser.”). “Only where the jury is given the
full opportunity to return a verdict either
on the greater or alternatively on the lesser
offense does the doctrine of implied acquittal obtain.” O’Kelley, 1991-NMCA-049,
¶ 16. In fact, the United States Supreme
Court itself has long since disclaimed a
broad reading of Green. See United States
v. Tateo, 377 U.S. 463, 465 n.1 (1964) (stating that Green “holds only that when one
is convicted of a lesser offense included in
that charged in the original indictment,
he can be retried only for the offense of
which he was convicted rather than that
with which he was originally charged”).
{12} When a defendant is convicted based
on one of two alternative means of committing a single crime, which is the situation
presented in this case, the near uniform majority of jurisdictions that have considered
the issue have refused to imply an acquittal
on the other alternative. See United States
v. Ham, 58 F.3d 78, 84-86 (4th Cir. 1995);
United States v. Wood, 958 F.2d 963, 971-72
(10th Cir. 1992); United States ex rel. Jackson
v. Follette, 462 F.2d 1041, 1047, 1049-50 (2d
Cir. 1972); Beebe v. Nelson, 37 F. Supp. 2d
1304, 1308 (D. Kan. 1999); Schiro v. State,
533 N.E.2d 1201, 1207-08 (Ind. 1989);
State v. Pexa, 574 N.W.2d 344, 347 (Iowa
1998) (“A failure to consider an alternative
definition of the offense charged does not
constitute an acquittal of that offense for
double jeopardy purposes.”); State v. Wade,
161 P.3d 704, 715 (Kan. 2007); Commonwealth v. Carlino, 865 N.E.2d 767, 774-75
(Mass. 2007); People v. Jackson, 231 N.E.2d
722, 728-30 (N.Y. 1967); State v. Wright, 203
P.3d 1027, 1035 (Wash. 2009) (en banc);
State v. Kent, 678 S.E.2d 26, 30-33 (W. Va.
2009); cf. State v. Terwilliger, 104 A.3d 638,
651-52 (Conn. 2014) (refusing to imply an
acquittal where a general verdict form made
it impossible to know which theory supported the defendant’s conviction); Torrez,
2013-NMSC-034, ¶¶ 10-14 (same). But see
Terry v. Potter, 111 F.3d 454, 458 (6th Cir.
1997); State v. Hescock, 989 P.2d 1251, 125657 (Wash. Ct.App. 1999) (applying Terry).
{13}In Wright, for instance, the Washington Supreme Court recognized that
the logic of Green does not follow when a
defendant is prosecuted for a single offense
that can be committed in multiple ways because “jeopardy attaches to the offense as a
whole rather than to the particular form in
which it is tried, so that if an individual succeeds in getting a conviction set aside, the
defendant’s ‘continuing jeopardy’ applies to
any alternative way of committing the same
offense.” Wright, 203 P.3d at 1035. Several
other courts have taken this approach.
See, e.g., Wood, 958 F.2d at 972 (holding
that, where the jury was instructed on one
offense, and the defendant was convicted
of that offense, retrial was not barred);
Terwilliger, 104 A.3d at 667-68 (Roger, C.J.,
concurring); Beebe, 37 F. Supp. 2d at 1307.
Their reasoning is persuasive because “[a]
defendant charged and tried under multiple statutory alternatives experiences the
same jeopardy as one charged and tried on
a single theory.” Wright, 203 P.3d at 1035.
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
31
Advance Opinions
That defendant “is in jeopardy of a single
conviction and subject to a single punishment, whether the [s]tate charges a single
alternative or several.” Id.
{14} In another example, the Court of Appeals of New York came to the same result
by applying the waiver theory of double
jeopardy (discussed briefly above) as opposed to the continuing jeopardy doctrine.
The defendant’s argument stands
or falls on his contention that
felony murder and premeditated
murder are separate offenses and
that the jury was given the opportunity to return a verdict on the
felony murder offense but failed
to do so. If felony murder and
premeditated murder constitute
one and the same offense—viz.,
murder in the first degree— [the
defendant] was not put in double
jeopardy at his second trial when
he was tried for felony murder as
well as premeditated murder; for
if a defendant is convicted of a
single offense and takes a successful appeal from his judgment of
conviction, he waives his constitutional protection against double
jeopardy for that offense[.]
Jackson, 231 N.E.2d at 729. In sum, these
cases stand for the sound proposition that
a conviction on only one theory of an offense is no less a conviction, and typical
double jeopardy retrial principles apply
to the offense as a whole.
{15} However, there is a limited exception
to this general rule, evident in decisions that
read Green as simply applying collateral estoppel (issue preclusion) notions in a double
jeopardy case. According to this analysis,
the defendant’s conviction of second degree
murder in Green “established the existence
of a fact (the state of mind required for
that offense) that was inconsistent with his
being guilty of first[]degree murder, so his
subsequent conviction of that offense was
barred.” Kennedy v. Washington, 986 F.2d
1129, 1134 (7th Cir. 1993). “That is all that
‘implied acquittal’ means.” Id.
{16} These issue-preclusion cases essentially state the following rule: A conviction
based on one of several statutory means of
committing a single offense may imply an
acquittal only when the conviction necessarily involves a factual finding inconsistent
with guilt on the other theory. See, e.g.,
Schiro v. Farley, 510 U.S. 222, 236 (1994)
(distinguishing Green because “[t]he failure
to return a verdict does not have collateral
estoppel effect . . . unless the record estab32
http://www.nmcompcomm.us/
lishes that the issue was actually and necessarily decided in the defendant’s favor”);
Ham, 58 F.3d at 85 (“A jury’s failure to decide
an issue will be treated as an implied acquittal only where the jury’s verdict necessarily
resolves an issue in the defendant’s favor.”);
Carlino, 865 N.E.2d at 775 (recognizing that
the appellate court “[could not] discern the
jury’s intention from their silence.”); State v.
Gause, 971 N.E.2d 341, 344-45 (N.Y. 2012)
(holding that a conviction for depraved
indifference murder necessarily precluded
a subsequent finding that the defendant
committed intentional murder because
those alternative theories are inconsistent
counts under New York law).
{17} This approach was taken by the highest court in Massachusetts in an opinion
that has been discussed favorably by our
own Supreme Court. See Torrez, 2013NMSC-034, ¶¶ 12-14 (discussing Carlino
for double jeopardy purposes). In Carlino,
the defendant was tried and convicted
on two alternative theories of first degree
murder. 865 N.E.2d at 769. However, the
defendant was also charged with a third
alternative theory (felony murder), but the
verdict slip did not indicate whether he was
acquitted or convicted on that theory. Id.
The murder conviction was later reversed,
and the defendant was tried again and found
guilty under all three theories, including
felony murder. Id. at 770. He appealed and
made the same argument that Defendant
makes in this case: that the fact finder’s
failure to mark one of several alternative
theories on a verdict slip is tantamount to an
acquittal on that theory, prohibiting retrial.
Id. at 772-73. The Carlino court rejected that
argument because “a true acquittal requires
a verdict on the facts and merits.” Id. at 775
(alteration, internal quotation marks, and
citation omitted). Nothing in the defendant’s convictions for two theories of first
degree murder “logically require[d] the
conclusion that the jury must have acquitted
the defendant of felony-murder.” Id. at 774.
{18} We can think of no reason that the
principles discussed at length in this Opinion do not apply in the present context, involving a de novo appeal from a nonjury trial
in magistrate court. See Ludwig, 427 U.S. at
631 (“A defendant who elects to be tried [d]
e novo . . . is in no different position than
is a convicted defendant who successfully
appeals on the basis of the trial record and
gains a reversal of his conviction and a remand of his case for a new trial.”). Defendant
has not made any factual argument about
what occurred in the off-record proceedings
below. He has limited his argument to the
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
doctrine of implied acquittal, while citing to
cases that are inapposite to that doctrine.
{19} We hold that there is no implied
acquittal when a fact finder convicts an individual for violation of one of multiple alternative means of committing a single offense,
unless the conviction necessarily resolves a
fact in the defendant’s favor. This holding
is consistent with the analysis of implied
acquittal and collateral estoppel applied in
the majority of jurisdictions and discussed
with approval by our own Supreme Court
in Torrez, 2013-NMSC-034, ¶ 13 (“[C]ourts
have refused to imply an acquittal unless a
conviction of one crime logically excludes
guilt of another crime.” (internal quotation
marks and citation omitted)). It is also supported by society’s interest in a decision on
the merits in a criminal case and by our
state’s general understanding “that what
constitutes an acquittal . . . is whether the
ruling of the judge . . . actually represents a
resolution, correct or not, of some or all of
the factual elements of the offense charged.”
Lizzol, 2007-NMSC-024, ¶ 9 (internal quotation marks and citations omitted). Since
Defendant was convicted in magistrate
court based on the per se theory of DWI,
and since that conviction is not logically inconsistent with a finding of impaired DWI,
Defendant’s double jeopardy rights were not
violated when he was retried de novo on the
impaired theory in the district court.
Jurisdiction
{20} Defendant also makes a cursory argument that the district court lacked jurisdiction to consider the impaired DWI theory
since the magistrate court never ruled on it.
“All appeals from inferior tribunals to the
district courts shall be tried anew in said
courts on their merits, as if no trial had been
had below, except as otherwise provided
by law.” Section 39-3-1. In this case, the
district court had appellate jurisdiction to
“conduct[] a new trial, as if the trial in the
lower court had not occurred.” State v. Heinsen, 2004-NMCA-110, ¶ 11, 136 N.M. 295,
97 P.3d 627 (alteration, internal quotation
marks, and citation omitted), aff ’d, 2005NMSC-035, 138 N.M. 441, 121 P.3d 1040.
The only potential limitation on its authority
to retry Defendant de novo was the Double
Jeopardy Clause, and we have already held
that double jeopardy was not violated.
CONCLUSION
{21} Defendant’s conviction is affirmed.
{22} IT IS SO ORDERED
LINDA M. VANZI, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
TIMOTHY L. GARCIA, Judge
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Bar Bulletin - March 23, 2016 - Volume 55, No. 12
33
Honoring the past
Building the Future
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Help the UNM Law Alumni/ae Association recognize
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Bar Bulletin - March 23, 2016 - Volume 55, No. 12
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Bar Bulletin - March 23, 2016 - Volume 55, No. 12
35
Classified
Positions
Request for Applications
City of Albuquerque
Assistant City Attorney Position
ASSISTANT CITY ATTORNEY: Assistant
City Attorney position available with Municipal Affairs Program working directly in the
City’s Municipal Development Department
with oversight by the Office of the City Attorney. The City of Albuquerque is seeking
a well-qualified, results-oriented contract
lawyer with preferred government business
experience. Litigation experience is also
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for a wide variety of contracts, assisting
other attorneys and many City departments
on various design and municipal construction procurement and administration issues.
Prefer: expertise in State and local procurement law and regulation, particularly New
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knowledge of contract concepts and applicable State and local contract acquisition
law and regulations, excellent analytical and
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judgment and creativity applied to resolution
of contract issues and excellent internal and
external negotiation skills. Prior knowledge
of City of Albuquerque policies and procedures is preferred. Salary will be based upon
experience and the City of Albuquerque Attorney’s Personnel and Compensation Plan
with a City of Albuquerque Benefits package included Salary range of $41,900.00 to
$90,000.00 depending on experience. Please
submit résumé to attention of “DMD Attorney Application”; c/o: Penny Louder, Senior
Personnel/Labor Relations Officer; Department of Municipal Development, P.O. Box
1293, Albuquerque, NM 87103. Application
deadline is March 23, 2016.
FY17 Legal Notice RFP Ad
The Administrative Office of the Courts
is soliciting proposals from licensed New
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cases arising under the N.M. Children’s Code.
Proposals will be accepted for all attorney
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Proposals must be received via email no later
than April 22, 2016 at 5:00pm. Questions may
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the CAAF Program office at (505) 827-4354.
RFP packets will not be mailed or faxed. The
Procurement Code, NMSA 1978, '13-1-28 to
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36
Trial Attorney
Intuition, skill, honesty and a fundamental
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87102. Thank you.
Proposal Request for Public
Defender Services
The Mescalero Apache Tribe is seeking proposals to provide Public Defender Services to
the Mescalero Tribal Court for criminal cases.
SUMMARY: The Mescalero Apache Tribal
Court is a court of general jurisdiction addressing crimes under the Mescalero Apache
Law and Order Code. All crimes do not exceed
one year sentencing. Attorneys licensed and in
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SUBMIT PROPOSALS TO THE MESCALERO
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9th Judicial District AttorneySenior Trial Attorney, Assistant Trial
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The Ninth Judicial District Attorney is accepting resumes and applications for an attorney
to fill one of the following positions depending
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to Dan Blair, District Office Manager, 417 Gidding, Suite 200, Clovis, NM 88101 or email to:
[email protected]
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
Attorney
The civil litigation firm of Atkinson, Thal
& Baker, P.C. seeks an attorney with strong
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Associate Attorney
Riley, Shane & Keller, P.A., an AV-rated
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and writing position. We seek a person
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c/o Office Manager, (fax) 505-883-4362 or
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Associate Attorney Position
Riley, Shane & Keller, P.A., an Albuquerque
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Associate Attorney with at least five years
insurance defense experience, wanted for
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Eleventh Judicial District
Attorney’s Office, Div II
The McKinley County District Attorney’s Office is currently seeking immediate resumes
for one (1) Assistant Trial Attorney. Position
is ideal for persons who recently took the bar
exam. Persons who are in good standing with
another state bar or those with New Mexico
criminal law experience in excess of 5 years
are welcome to apply. Agency guarantees
regular courtroom practice and a supportive
and collegial work environment. Salaries are
negotiable based on experience. Submit letter
of interest and resume to Kerry Comiskey,
Chief Deputy District Attorney, or Gertrude
Lee, Deputy District Attorney 201 West Hill,
Suite 100, Gallup, NM 87301, or e-mail letter
and resume to [email protected]
or [email protected] by 5:00 p.m. April
1, 2016.
Associate Attorney – Santa Fe
The Santa Fe office of The Rothstein Law Firm
seeks an associate attorney with 3 plus years
of litigation experience. Candidates should
have a strong academic background and
excellent research and writing skills. Please
email a resume and writing sample to info@
rothsteinlaw.com.
Attorney
Butt Thornton & Baehr, PC seeks an attorney
with at least 4 years’ experience in civil litigation. Our growing firm is in its 57th year
of practice. We seek an attorney who will
continue our tradition of excellence, hard
work, and commitment to the enjoyment of
the profession. Please send letter of interest
and resume to [email protected]
Executive Director
SEARCH REOPENED - Extraordinary opportunity to lead a highly effective, financially sound advocacy organization. The New
Mexico Center on Law and Poverty seeks a
highly competent leader to join the organization as Executive Director. Job duties include leading the organization, fundraising,
managing finances and operations, liaising
with the board and taking an active role in
advocacy. Ideal candidate is an outstanding
leader, having been successful in leading advocacy campaigns, non-profit management,
fundraising, working with public officials and
media, and having a background in poverty
or civil rights advocacy. History in NM and
strong Spanish language skills preferred.
Reasonable non-profit salary. Good benefits.
EEOE. To apply, send letter of interest and
resume to [email protected]
Case Manager
US Bankruptcy Court seeks a Case Manager
responsible for managing the progression
of cases from opening to final disposition.
Applicants with legal or court experience
preferred; bankruptcy experience desirable.
Go to the employment information link at
www.nmb.uscourts.gov/employment to find
the complete job posting and application requirements. Initial review of resumes starts
April 11, 2016 but position will remain open
until filled. Incomplete applications will not
be considered.
Legal Assistant
Estate planning firm seeks Legal Assistant for
drafting of correspondence and legal documents; filing pleadings with court. Must have
5 years of experience and Bachelor’s degree.
Proficient in M/S Office apps: Word, Excel,
Outlook, and PowerPoint. Must be willing to
work evenings or weekends, if needed. Send
your resume with cover letter including salary requirements to Wilcox Law Firm, P.C.,
PO Box 70238, Alb. NM 87197. No phone
calls please.
Paralegal
Experienced paralegal needed for busy family law firm in Albuquerque. Family law
experience preferred. We are looking for a
highly organized professional who can work
independently. Exceptional people skills are
needed due to substantial client interaction.
Must be able to multi-task in a fast paced
environment. Excellent work environment,
benefits and salary. Please provide resume
to [email protected]
PARALEGAL
(Job IRC48672)
Los Alamos National Laboratory’s office of
the General Counsel is seeking an experienced paralegal for its Litigation Management
Group. Incumbent will interact professionally with all levels of staff and management
at the Lab, DOE/NNSA, and other external
organizations, including court personnel
and outside counsel. LANL is an AA/EOE
and supports a diverse and inclusive workforce. All employment practices are based on
qualification and merit, without regards to
race, color, national origin, ancestry, religion,
age, sex, gender identity, sexual orientation
or preference, marital status or spousal affiliation, physical or mental disability, medical
conditions, pregnancy, status as a protected
veteran, genetic information, or citizenship
within the limits imposed by federal laws and
regulations. For job requirements and to apply on line refer to job IRC48672: http://www.
lanl.gov/careers/career-options/jobs/index.
php For specific questions about the status
of this job call 505-606-0784. EOE
Services
Briefs, Research, Appeals­—
Leave the writing to me. Experienced, effective, reasonable. [email protected]
(505) 281 6797
Contract Paralegal
Paralegal with 25+ years of experience available for work in all aspects of civil litigation
on a freelance basis. Excellent references.
[email protected]
Paralegal
Must have at least 3 years experience with
court filing, including efiling; legal research;
scheduling; client/court contract; and AP/
AR. Small office. Good working atmosphere.
Fax resume to (505) 888-7907.
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
37
Office Space
Office Space Available
Near Downtown Albuquerque
Need Office Space?
Plaza500 located in the Albuquerque Plaza
Office building at 201 3rd Street NW offers
all-inclusive office packages with terms as
long or as short as you need the space. Office package includes covered parking, VoIP
phone with phone line, high-speed internet,
free WiFi, meeting rooms, professional reception service, mail handling, and copy and fax
machine. Contact Sandee at 505-999-1726 or
[email protected]
Downtown Law office located at
1st and Gold
Eight private offices, open areas, reception,
conference room, kitchen, built-in rolling
file storage room and private balconies on the
2nd floor. $4,500/month including utilities
and three onsite parking spaces. Call Brent
or Cheryl at Maestas & Ward @ 878-0001
3500 Comanche NE
SOPHISTICATED fully furnished office
plus separate space for legal assistant. Rent
includes utilities, wifi, parking, shared
conference room, kitchen, referrals and collaboration with other attorneys. $550 - $900/
month depending upon your need. Contact
[email protected]
We have office space available near downtown
Albuquerque at 1429 Central Avenue. With
two separate offices, private bathrooms and
lounge space, the approx 510 sq ft modern
space is perfect for two people. Office space is
available at $18/ft and comes with two parking spots included. For further information
contact Cibola Land Corporation at 505-2422050 and ask for Kathryn.
620 Roma N.W.
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fax, internet, janitorial service, copy machine, etc. All of this is
included in the rent of $550 per month. Up
to three offices are available to choose from
and you’ll also have access to five conference rooms, a large waiting area, access to
full library, receptionist to greet clients and
take calls. Call 243-3751 for appointment to
inspect.
Offices For Rent
Offices for rent, one block from courthouses,
all amenities: copier, fax, telephone system,
conference room, internet, phone service,
receptionist. Call Ramona at 243-7170.
Office Wanted
Santa Fe Office Wanted
Attorney seeks office share/office in Santa
Fe. 930-2407.
Miscellaneous
Search For Will
William Andrew Hall died February 22, 2016.
He resided in Santa Fe, N.M. We are seeking the attorney who may have written his
will. Email Barbara at attorneywhetten@
gmail.com
For Sale
Law Books For Sale
New Mexico Reports Volumes 1-135 (1852 –
2004) Includes rare leather bound volumes
1-21 (1852 – 1916) All books in good condition
and would make a classy and useful addition
to any office. $750.00 Inquiries 575-526-5872
[email protected]
SUBMISSION DEADLINES
All advertising must be submitted via Email by 4 p.m. Wednesday, two weeks prior to
publication (Bulletin publishes every Wednesday). Advertising will be accepted for
publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher
and subject to the availability of space. No guarantees can be given as to advertising
publication dates or placement although every effort will be made to comply with
publication request. The publisher reserves the right to review and edit ads, to request that
an ad be revised prior to publication or to reject any ad. Cancellations must be received
by 10 a.m. on Thursday, 13 days prior to publication.
For more advertising information, contact:
Marcia C. Ulibarri at 505-797-6058
or email [email protected]
38
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
Advertising sales now open!
2016-2017
Bench & Bar Directory
To make your space reservation,
please contact Marcia Ulibarri
505-797-6058 • [email protected]
Advertising space reservation deadline: March 25, 2016
www.nmbar.org
Bar Bulletin - March 23, 2016 - Volume 55, No. 12
39
2016
the
Save !
date
Annual Meeting–
Bench & Bar Conference
Santa Fe • Aug. 18-20, 2016
Keynote Speaker:
Ruth Bader Ginsburg
Associate Justice, U.S. Supreme Court
For information on sponsorship opportunities, Annual Meeting Program advertising
or exhibit space, contact Stephanie Wagner, development director, at [email protected] or 505-797-6007
www.nmbar.org

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