april 23, 2014 • volume 53, no. 17 - state bar of new mexico law day: may 1 special insert cle...

Celebrate Law Day: May 1

Special Insert

CLE Planner

Inside This Issue

April 23, 2014 • Volume 53, No. 17

Table of Contents ................................................... 3

The Importance of Law Day and a Change of Heart: West Virginia State Board of Education v. Barnette, By James C. McKay ............................ 9

Juror Appreciation Week ..................................... 11

Law Day Proclamation ......................................... 12

Clerk’s Certificates ................................................ 18

From the New Mexico Supreme Court

2014-NMSC-008, No. 33,025/ 33,054: Bernalillo County Health Care Corporation v. New Mexico Public Regulation Commission ................................ 20

From the New Mexico Court of Appeals

2014-NMCA-030, No. 31,547: Clark v. Clark .................................................... 25

2014-NMCA-031, No. 31,990: Curry v. Great Northwest Insurance Company ....................................... 30

2 Bar Bulletin - April 23, 2014 - Volume 53, No. 17

Bar Bulletin - April 23, 2014 - Volume 53, No. 17 3

Notices ................................................................................................................................................................4The Importance of Law Day and a Change of Heart: West Virginia State Board of Education v. Barnette, By James C. McKay ................................................................................................9Juror Appreciation Week ............................................................................................................................ 11Law Day Proclamation ................................................................................................................................. 12Legal Education Calendar .......................................................................................................................... 13Writs of Certiorari ......................................................................................................................................... 15List of Court of Appeals’ Opinions ........................................................................................................... 17Clerk’s Certificates ......................................................................................................................................... 18Recent Rule-Making Activity ..................................................................................................................... 19Opinions

From the New Mexico Supreme Court2014-NMSC-008, No. 33,025/33,054: Bernalillo County Health Care Corporation v. New Mexico Public Regulation Commission ............................................................................ 20

From the New Mexico Court of Appeals2014-NMCA-030, No. 31,547: Clark v. Clark ................................................................................ 25

2014-NMCA-031, No. 31,990: Curry v. Great Northwest Insurance Company .............. 30

Advertising ...................................................................................................................................................... 36

Officers, Board of Bar Commissioners Erika Anderson, President Martha Chicoski, President-Elect J. Brent Moore, Vice President Scotty A. Holloman, Secretary-Treasurer Andrew J. Cloutier, Immediate Past President

Board of Editors Ian Bezpalko, Chair George C. Kraehe Kristin J. Dalton Maureen S. Moore Jocelyn C. Drennan Tiffany L. Sanchez Jennifer C. Esquibel Mark Standridge Bruce Herr Joseph Patrick Turk

State Bar Staff Executive Director Joe Conte Managing Editor D.D. Wolohan 505-797-6039 • [email protected] Communications Coordinator Evann Kleinschmidt 505-797-6087 • [email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri 505-797-6058 • [email protected] Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo

©2014, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

505-797-6000 • 800-876-6227 • Fax: 505-828-3765 E-mail: [email protected]. • www.nmbar.org

April 23, 2014, Vol. 53, No. 17

Table of Contents

Meetings

April

23 Alternative Methods of Dispute Resolution Committee, noon, State Bar Center

23 Natural Resources, Energy, and Environmental Law Section BOD, Noon, via teleconference

25 Immigration Law Section BOD, Noon, via teleconference

29 Appellate Practice Section BOD, Noon, via teleconference

MAy

1 Health Law Section BOD, 9 a.m., via teleconference

6 Bankruptcy Law Section BOD, Noon, U.S. Bankruptcy Court

7 Employment and Labor Law Section BOD noon, State Bar Center

8 Business Law Section, 4 p.m., via teleconference

stAte BAr Workshops

April

23 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center

24 Consumer Debt/Bankruptcy Workshop, 5:30 p.m., The Law Office of Kenneth Egan, Las Cruces

MAy

7 Divorce Options Workshop 6 p.m., State Bar Center

7 Foreclosure Legal Fair 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room, Albuquerque

13 Civil Legal Clinic for Veterans 9 a.m.–noon, Raymond G. Murphy VA Medical Center, SCI Meeting Room, Albuquerque

24 Consumer Debt/Bankruptcy Workshop, 9 a.m., The Law Office of Kenneth Egan, Las Cruces

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NoticesProfessionalism Tip

With respect to the courts and other tribunals:

When hearings or depositions are cancelled, I will notify opposing counsel, necessary parties, and the court (or other tribunal) as early as possible.

Court neWsNew Mexico Supreme Court2014 New Mexico Rules Annotated Available The 2014 New Mexico Rules Annotated three-volume set is now available exclu-sively through the New Mexico Compi-lation Commission. This is the official publication for the New Mexico appellate courts that is relied on by the judiciary, public defenders, district attorneys, and trial and defense lawyers in the state. The 2014 edition contains the complete library of rules, forms and jury instructions of the New Mexico courts and all rule updates effective through Dec. 31, 2013. Case an-notations are to the Supreme Court of New Mexico through 2013-NMSC-047 and New Mexico Court of Appeals through 2013-NMCA-097 including references to the American Law Reports. Cross refer-ence notes providing directions to statutes of similar or related subject matter also are provided. Call 505-827-4821 to place an order.

Proposed Amendments to Supreme Court Rules of Practice and Procedure In accordance with the Supreme Court’s new annual rulemaking process under Rule 23-106 NMRA, which in-cludes an annual publication of proposed rule amendments for public comment every spring, various 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 April 2 (Vol. 53, No. 14) Bar Bulletin. Those who would like to view the proposed amendments sum-marized before they are submitted to the Court for final consideration may do so by visiting the Supreme Court’s website, http://nmsupremecourt.nmcourts.gov.

Comments can be submitted electronically through the Court’s website, by email to [email protected], by fax to 505-827-4837, or by mail to Joey D. Moya, Clerk, New Mexico Supreme Court, PO Box 848, Santa Fe, NM 87504-0848. Comments must be received by the Clerk on or before April 30. Any submitted comments may be posted on the Supreme Court’s website for public viewing.

New Mexico Board of Legal SpecializationComments Solicited The following attorneys are applying for certification as a specialist in the areas of law identified. Application is made under the New Mexico Board of Legal Special-ization, Rules 19-101 through 19-312 NMRA, which provide that the names of those seeking to qualify shall be released for publication. Further, attorneys and others are encouraged to comment upon any of the applicant’s qualifications within 30 days after the publication of this notice. Address comments to New Mexico Board of Legal Specialization, PO Box 93070, Albuquerque, NM 87199.

Family LawKathryn Erin TerryDorene A. KufferKimberly Padilla

First Judicial District CourtAnnouncement of Vacancy A vacancy on the First Judicial District Court will exist in Santa Fe as of May 21 due to the creation of an additional judge-

ship by the Legislature. The new judge will be assigned to the general civil docket by Chief Judge Raymond Z. Ortiz. David Herring, Chair of the Judicial Nominat-ing Commission, solicits applications for this position from lawyers who meet the statutory qualifications in Article VI, Sec-tion 14 of the New Mexico Constitution. Applications may be obtained from the judicial selection website, http://lawschool.unm.edu/judsel/application.php, or by calling Raylene Weis at 505-277-4700. The deadline for applications is 5 p.m., June 10. Applicants seeking information regarding election or retention if appointed should contact the Bureau of Elections in the Of-fice of the Secretary of State. The Judicial Nominating Commission will meet at 9 a.m., June 19, at the Judge Steve Herrera Judicial Complex, 224 Montezuma Ave., Santa Fe, to evaluate the applicants for this position. The Commission meeting is open to the public and anyone who wants to voice his or her opinion about a candidate will be heard.

Second Judicial District CourtAnnouncement of Vacancy A vacancy will exist in the Second Judicial District Court in Albuquerque as of May 21, due to the creation of an additional judgeship by the Legislature. This position will be assigned to the Civil Division. Further inquiries regarding ad-ditional details or assignment of this judicial vacancy should be directed to the chief judge or the administrator of the court. David Herring, Chair of the Judicial Nominating Commission, solicits applica-tions for this position from lawyers who

Judicial Records Retention and Disposition Schedules Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court.

Court Exhibits/Tapes For Years May Be Retrieved Through2nd Judicial District Court Domestic Matters/Relations 1987–1994 June 5505-841-7596/6717 and Domestic Violence

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Submitannouncementsfor publication in the Bar Bulletin to

[email protected] by noon Monday the week prior to publication.

meet the statutory qualifications in Article VI, Section 14 of the New Mexico Con-stitution. Applications may be obtained from the Judicial Selection website, http://lawschool.unm.edu/judsel/application.php, or by calling Raylene Weis at 505-277-4700. The deadline for applications is 5 p.m., June 11. Applicants seeking in-formation regarding election or retention if appointed should contact the Bureau of Elections in the Office of the Secretary of State. The Judicial Nominating Commis-sion will meet on June 20 at the Bernalillo County Courthouse in Albuquerque to evaluate the applicants for this position. The Commission meeting is open to the public and anyone who wants to voice his or her opinion about a candidate will be heard.

Challenge Notice Gov. Susana Martinez has announced the appointment of Marie Ward to fill the va-cancy of Division XIV at the Second Judicial District Court. Effective March 31, Judge Ward, will be assigned Children’s Court cases previously assigned to Judge Reed Sheppard. Pursuant to Supreme Court Rule 1-088.1 parties who have not yet exercised a peremptory excusal will have 10 days from April 23 to excuse Judge Ward.

Fifth Judicial District CourtAnnouncement of Vacancy A vacancy on the Fifth Judicial District Court will exist in Lovington as of May 21, due to the creation of an additional judge-ship by the Legislature. This will be for a general jurisdiction judge for Division XI. Inquiries regarding additional details or assignment of this judicial vacancy should be directed to the chief judge or the admin-istrator of the court. David Herring, Chair of the Judicial Nominating Commission, solicits applications for this position from lawyers who meet the statutory qualifica-tions in Article VI, Section 14 of the New Mexico Constitution. Applications may be obtained from the Judicial Selection website: http://lawschool.unm.edu/judsel/application.php, or by calling Raylene Weis at 505-277-4700. The deadline for applications has been set for 5 p.m., May 27. 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 Nomi-nating Committee will meet on June 6, at the Lea County Courthouse, Courtroom #3, 100 N. Main St., Lovington, to evaluate the applicants for this position. The Com-mittee meeting is open to the public.

Thirteenth Judicial District CourtAnnouncement Of Vacancy One vacancy will exist in the 13th Judi-cial District Court in Bernalillo (Sandoval County) due to the creation of a new judge-ship by the Legislature, effective May 21. Inquiries regarding details or assignment of this judicial vacancy should be directed to the chief judge or the administrator of the court. David Herring, Chair of the Judicial Nominating Commission, solicits applica-tions for this position from lawyers who meet the statutory qualifications in Article VI, Section 14 of the New Mexico Con-stitution. Applications may be obtained from the Judicial Selection website, http://lawschool.unm.edu/judsel/application.php, or by calling Raylene Weis at 505-277-4700. The deadline for applications has been set for 5 p.m., May 29. 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., June 9, at the Valencia County Courthouse in Los Lunas, to evaluate the applicants for this position. The Commission meeting is open to the public and anyone who wants to voice his or her opinion about a candidate will be heard.

Notice of Case Reassignments Gov. Susana Martinez has announced the appointment of Allen R. Smith to fill the vacancy of Division 3 at the 13th Judicial District Court, Valencia County, due to the retirement of Judge William A. Sanchez. Effective April 28, Judge Smith will be assigned to the family law cases previously assigned to Judge James L. Sanchez, Division 1. Further, effective April 28, Judge James L. Sanchez will be assigned cases previously assigned to Judge William A. Sanchez. Pursuant to NMRA 1-088.1, parties who have not yet exercised a peremptory excusal will have until June 6 to excuse the successor judge.

Bernalillo County Probate CourtRetirement Celebration The Bernalillo County Probate Court is holding a retirement celebration for Legal Assistant Tony Garcia from 11 a.m.–2:30 p.m., April 29. All are welcome. For more information, contact Ambrosha Miranda at 505-468-1232.

New Mexico Lawyers and Judges

Assistance Program

Help and support are only a phone call away. 24-Hour Helpline

Attorneys/Law Students505-228-1948 • 800-860-4914

Judges888-502-1289

www.nmbar.org/JLAP/JLAP.html

Defined FitnessMembers, their employees,

and immediate family members can enjoy a discounted rate

of $34/month (plus tax) with access to all five club locations, group fitness classes and free supervised child care.

Bring proof of SBNM membership. Contact Shawn Gale,

[email protected] or 505-814-2355. Visit www.defined.com.



http://www.defined.com



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http://lawschool.unm.edu/judsel/



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stAte BAr neWsAttorney Support Groups• May 5, 5:30 p.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the first Monday of the month.)

• May 12, 5:30 p.m. UNM School of Law, 1117 Stanford NE,

Albuquerque, Room 1119 (The group meets the second Monday of the month.)

• May 19, 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 Bill Stratvert, 505-242-6845.

Employment and Labor Law SectionBoard Meeting The Employment and Labor Law Sec-tion board of directors welcomes section members to attend its meetings on the first Wednesday of each month. The next meeting is at noon, May 7, at the State Bar Center. Lunch is provided to those who R.S.V.P. to Evann Kleinschmidt, [email protected] by May 6. For more information, contact Chair Erin E. Langenwalter, [email protected].

Natural Resources, Energy, and Environmental Law SectionSection Happy Hour Natural Resources, Energy, and En-vironmental Law Section members are invited to happy hour from 5:30-7:30 p.m., April 24, at Seasons Rotisserie & Grill. Appetizers and one drink ticket will be provided to section members who R.S.V.P. to Evann Kleinschmidt, [email protected] by April 21.

New Mexico Medical Review CommissionCLE Fee Waiver Opportunity The New Mexico Medical Review Com-mission, in an effort to recruit new Commis-sion members and to reward existing mem-bers, is offering panelists the opportunity to have their fee waived on the NMMRC’s five-hour medical malpractice CLE Dec. 19. Those interested should serve on four panels before Dec. 1. Current members should watch for more information in their next panel pack. Those seeking to become members should visit http://www.nmms.org/sites/default/files/images/2014_3_12_sign_up_for_panelist.pdf.

Public Law SectionAlbert Lama Named 2014 Public Lawyer of the Year Albert J. Lama has been named as the 2014 Public Lawyer of the Year by the Public Law Section for the dedication and distinction of his long career as a public lawyer. Most of his 25-year career has been spent in the state Attorney General’s Office in senior positions, including as director of the civil division and his current position of chief deputy attorney general. Lama was chief hearing officer for the state Taxation and Revenue Department and served as the district director in Santa Fe for then-Con-gressman Tom Udall. He has participated in training members of the public and other lawyers about public issues, particularly those relative to the Inspection of Public Records Act, Open Meetings Act, and ethical issues faced by public lawyers. Lama will be presented with the award at a ceremony at 4 p.m., May 1, at the Capitol Rotunda in Santa Fe. Chief Justice Barbara J. Vigil , Attorney General Gary King, and State Bar President Erika Anderson will speak at the ceremony.

Young Lawyers DivisionABA Women Rainmakers Spring 2014 Workshop The American Bar Association Women Rainmakers presents “Negotiate Your Way to Success: Best Practices for Women Rainmakers.” This interactive moderated program will discuss the necessary steps for strategic and effective negotiations on behalf of clients and attorneys. The workshop will take place from 4–5:30 p.m., May 15, at the Albuquerque Country Club. It is hosted by the New Mexico Women’s Bar Association, Young Lawyers Divi-sion, Committee on Women in the Legal Profession, and Roybal-Mack Law, PC. Register online, https://apps.americanbar.org/aba_timssnet/meetings/tnt_meetings.cfm?action=long&primary_id=EP1405L&webtextid=84905&Subsystem=MTG&related_prod_flag=0.

Bridge the Gap Mentorship Program Forum The Young Lawyers Division will be holding a forum about the Bridge the Gap Mentorship Program at 11:30 a.m.–1:30 p.m., June 5, at the State Bar Center. Past mentors and mentees are particularly welcome to share their thoughts on ways to improve the program that matches a veteran attorney with a new attorney in a

one-year mentorship. Lunch will be served. R.S.V.P. to [email protected].

unMLaw LibraryHours Through May 17Building & Circulation

Monday–Thursday 8 a.m.–10 p.m.Friday 8 a.m.–6 p.m.Saturday 8 a.m.–5 p.m.Sunday Noon–8 p.m.

ReferenceMonday–Friday 9 a.m.–6 p.m.Saturday–Sunday Closed

other BArsAlbuquerque Bar AssociationLaw Day Celebration To celebrate Law Day, the Albuquerque Bar Association will host a luncheon pro-gram at 11:45 a.m., May 1, at the Crowne Plaza Hotel, 1901 University Blvd. NE, Albuquerque. The keynote speaker will be John Hardin Young, counsel at Sandler, Reiff, Young and Lamb, PC, and chair of the American Bar Association Advisory Committee on Election Law. Register by noon, April 24, online at www.abqbar.org. For information about sponsorship opportunities, email Terah Beckmann, [email protected].

New Mexico Hispanic Bar AssociationLuncheon and Ethics CLE The New Mexico Hispanic Bar Associa-tion presents a luncheon and ethics CLE on May 16 at Artichoke Café, 424 Central Ave. SE, Albuquerque. Gabriel Sanchez, Ph.D., UNM political science profes-sor and director of research for Latino Decisions, will be the keynote speaker at the luncheon from 12:30–1:45 p.m. U.S. District Court Judges Kenneth Gonzales and Lorenzo Garcia will present “Tips for Achieving an Ethical and Professional Practice” (1.0 EP) from 2–3 p.m. For reg-istration and more information, visit www.nmhba.net.

Meet-and-Greet Event in Roswell The New Mexico Hispanic Bar As-sociation is hosting a meet-and-greet event at 5:30 p.m., April 24, at the Pecos Flavors Winery in Roswell. It is co-hosted by the New Mexico Hispanic Bar As-sociation, Young Lawyers Division and the Women’s Bar Association. To R.S.V.P., email [email protected] or visit http://nmhba.net/.




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Nominations Now Being Accepted

2014 State Bar Annual Awards

Send a letter of nomination for each nominee to:

Joe Conte, Executive DirectorState Bar of New Mexico

PO Box 92860Albuquerque, NM 87199-2860

fax 505-828-3765 or email [email protected]

Nomination Deadline: May 19

For more information, see the March 26 (Vol. 53, No. 13) Bar Bulletin

or visit http://www.nmbar.org/ Attorneys/AM/AnnualAwards2014.pdf.

New Mexico Women’s Bar AssociationAnnual Award Reception The New Mexico Women’s Bar As-sociation’s Annual Award Reception will honor Congresswoman Michelle Lujan Grisham, from 5:30–8 p.m., May 16, at Hotel Andaluz in Albuquerque. There will be a silent auction featuring an in-home private chef dinner, jewelry, spa services, and more. All proceeds fund the WBA Scholarship Program benefiting students from the UNM School of Law. The recep-tion is co-sponsored by the Committee on Women in the Legal Profession who will be collecting donations for their Profes-sional Clothing Closet, which provides free business clothing to law students and young attorneys. Attendees are invited to bring an item to donate. Sponsorship level includes 10 tickets for $450 or private cash bar and 8 tickets for $500. Individual tick-ets available for $45 for WBA Members or $60 for non-members. R.S.V.P. to [email protected] by May 9

Vacancy on Board of Directors A vacancy exists on the New Mexico Women’s Bar Association Board of Direc-tors due to the resignation of one current director. Interested members should send a letter of interest and résumé to the Presi-dent Dayan Hochman at [email protected] by May 2. The position is to fulfill a one year term, expiring Dec. 31, 2014 but may run for a subsequent two year term. Board members are expected to attend bi-monthly meetings, in person or by phone, to actively participate on one or more committees, and to support the events sponsored by the Women’s Bar Association. The New Mexico Women’s Bar does not discriminate on the basis of sex or gender and encourages all licensed attorneys to become members and apply to be on the Board.

WBA Pathway to the Judiciary CLE Justice Petra Jimenez Maes, Hon. Linda Vanzi, Hon. C. Shannon Bacon, and Hon. Karen Molzen will present “Pathway to the Judiciary” (1.0 G, 1.0 EP), an engaging panel discussion on applying for a judicial vacancy, the application and nomination process, running in a judicial election, what the day-to-day life of a judge is like, and how entering the judiciary affects life. The program will be from 2–5 p.m., April 25, at Hotel Andaluz in Albuquerque. Register early as space is limited. Email [email protected] for registration details.

other neWsChristian Legal AidTraining Seminar New Mexico Christian Legal Aid invites new members to a refresher seminar from noon–5 p.m., April 25, at the State Bar Center. Enjoy free lunch, CLE credits, and training while updating skills on how to provide legal aid. For more information or to register, contact Jim Roach at 505-243-4419 or Jen Meisner at 505-610-8800 ([email protected]).

New Mexico Public Defender CommissionSeeking Applications The Dean of the Law School is seeking applications from individuals interested in appointment to fill a vacancy on the New Mexico Public Defender Commis-sion. Applicants must have (1) significant experience in the legal defense of criminal or juvenile justice cases or (2) demon-strated a commitment to quality indigent defense representation or to working with and advocating for the population served by the Public Defender. See NMSA 1978, § 31-15-2.2 (2013). Because the Dean is required by law to make appoint-ments that will maintain balance on the Commission among the largest political parties, see NMSA 1978, § 31-15-2.1(B) (2013), an applicant who is a registered Republican must be appointed to fill the current vacancy. Interested applicants should submit a resume and letter of interest identifying their political affili-ation and specifying how they meet the criteria outlined above, by mail to Raylene Weis, Assistant to the Dean, 1117 Stanford Drive NE, Albuquerque, NM 87106, by fax to 505-277-1597, or by email to [email protected]. To be considered for ap-pointment, applications must be received on or before May 9.

New Mexico Workers’ Compensation AdministrationRequest for Comments The director of the Workers’ Compen-sation Administration, Darin A. Childers, is considering the reappointment of Judge Leonard Padilla to a five-year term pursuant to NMSA 1978, Section 52-5-2 (2004). Judge Padilla’s term expires on Aug. 31. Those wishing to submit written comments concerning Judge Padilla’s per-formance may do so until 5 p.m., June 2. Mail comments to WCA Director Darin A.

Childers, c/o Human Resources, PO Box 27198, Albuquerque, NM 87125-7198, or fax to 505-841-6813.

Workers’ Compensation Association of New Mexico33rd Annual Conference The Workers’ Compensation Associa-tion of New Mexico will host its 33rd an-nual conference, beginning with the 20th Annual Toby Wright Memorial Scholar-ship Golf Tournament, May 14–16, at the Isleta Resort and Casino. The conference offers continuing education credits in a variety of disciplines, including MCLE (exact number of credits pending approval of the MCLE Board). For more informa-tion on this year’s conference topics/speakers, registration and/or sponsorship opportunities, visit www.wcaofnm.com.



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Law Day Call-in is Saturday, April 26, 9 a.m. to 1 p.m.,

at the State Bar Center and at regional locations.

Volunteers should sign up with their regional YLD director.

Albuquerque: Spencer Edelman, [email protected]

Farmington: Ken Stalter, [email protected]

Roswell: Tim Scheiderer, [email protected]

Southern New Mexico: Erin Atkins, [email protected]

YOUNG LAWYERS DIVISION






On Feb. 3, 1958, President Dwight D. Eisen-hower established “Law Day in the United States,”1 which was subsequently recognized in statute by Public Law 87-20, on April 7, 1961.2 The statute, codified at 36 USC Section 113, fixed May 1 to be “Law Day.” Every president following Eisenhower has continued the tradition of issuing an annual Law Day Proclamation. Most recently, in 2013, President Barack Obama issued Proclamation No. 8972, 78 FR No. 86, 26215, urging “Americans to acknowledge the importance of our nation’s legal and judicial system.” The American Bar Association Law Day 2014 Planning Guide em-phasizes that Law Day is “a national day set aside to celebrate the rule of law,” and which provides an opportunity to recognize the role of courts in this democracy and the importance of jury service to maintaining the integrity of the courts.” During World War II, consideration for “the role of the courts in this democracy,” and the principle of guaranteed fundamental rights of individuals un-der the law, two important drivers of the meaning of Law Day, were balanced by the U.S. Supreme Court in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (hereinafter “Barnette”). In Barnette, the Court was called upon to consider the Free Speech clause of the First Amendment to the U.S. Constitution and freedom of religion. As part of this analysis, the Court revisited a prior case, Minersville School District v. Gobitis, 310 U.S. 586 (1940), 60 S. Ct. 1010, 84 L.Ed. 1375 (1940) (hereinafter “Gobitis”), in which the Court had upheld a Pennsylvania law that compelled all public school students, including those who were Jehovah’s Witnesses, to salute the American flag while saying the Pledge of Allegiance, despite a student’s objections to these practices based on their religious beliefs. While the Gobitis case and the subsequent Barnette cases became known collectively as the “Flag Salute Cases,”3 changes in the world following Gobitis would also change the outcome of Barnette. As a result of the Gobitis case, West Virginia passed a law in 1942, “for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of government,” Barnette, Id. at 626. The Gobitis case may have been seen initially as a patriotic pronouncement for “Americanism” by some, but it incited certain less than desirable civic results. Gobitis caused a shocking wave of intolerance and persecution against the Jehovah’s Witnesses nationally. On June 9, 1940, for example, six days after the court issued the Gobitis decision, a mob of 2,500 burned the Jehovah’s Witnesses Kingdom Hall in Kennebunkport, Maine; eventually violence against Jehovah’s Witnesses would occur in all 48 states, in similar or lesser degrees. The reason for the violence was due in part, as one Gobitis commentator has suggested that “many Americans regarded the [Jehovah’s] Witnesses’ refusal to recite the Pledge as evidence of disloyalty and of sympathy and even collaboration with the Nazi regime.”4

With this backdrop of domestic turmoil following the Gobitis opinion, along with the United States having recently entered World War II, the West Virginia State Board of Education met on Jan. 9, 1942, and adopted a resolution ordering that the flag salute become a mandatory part of the school curriculum and that all teachers and students “shall be required to participate in the salute honoring the Nation’s flag, provided, however, that refusal to salute the flag be regarded as an Act of insubordination and shall be dealt with accordingly,” meaning school “expulsion.” Barnette, supra, at 627. The flag salute required was a “stiff arm” salute, with the saluter to keep the right hand raised and fully extended, with palm turned up to the flag, while the Pledge of Allegiance was simultaneously recited by the saluter. The form of the salute had been objected to by the Parents and Teachers Associations (“PTA”), and other civic organizations, as being too much “like Hitler’s” Nazi salute, Barnette, Id. at 628. That same spring, Marie and Guthie Barnette, ages 9 and 11 respectively, were students at The Slip Hill Grade School, an elementary school outside Charleston, W.Va. The Barnette girls had been asked by the principal of the school whether they would recite the pledge and salute to the flag during school. In respond-ing “no,” they explained that “pledging allegiance to a flag was an act of worship and we could not worship anyone or anything but our God Jehovah.”5 Thereafter, the girls would report to school in the morning, but would be sent home each day. The Barnette girls’ parents sought an injunction in federal court to stop enforcement of the Board of Education’s flag salute requirement. Notwithstanding the Gobitis case, the U.S. Federal Fourth Circuit Court of Appeals held that the flag salute was “void” as it “applies to children having conscientious scruples against giving such salute,” Barnette v. West Virginia State Board

The Importance of Law Day and a Change of Heart:West Virginia State Board of Education v. Barnette

By James C. McKay

School children reciting the Pledge of Allegiance. Library of Congress.


of Education, 47 F.Supp. 251, 256 (S.D. W.Va. 1942). The case was appealed directly to the Supreme Court. The Supreme Court’s opinion was delivered by President Franklin D. Roosevelt’s New Deal appointee Justice Jackson, reversing the Gobitis opinion by a 6-3 majority. Justice Jackson elevated the Barnette decision by anchoring his argument to constitutional bedrock “questioning the general power of government to compel participation in a flag salute,” which “transformed the case from a dispute over spe-cial religious exemptions to one that implicated the freedom of speech for all students, including those whose objections to par-ticipation derived from moral or political rather than religious scruples.”6 Justice Jackson addition-ally expanded upon the role of the court to decide questions of fundamen-tal rights, stating “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of politi-cal controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be ap-plied by the courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submit-ted to votes; they depend upon the outcome of no elections.” Barnette, supra, at 639. In Barnette, Justice Jackson therefore shaped his argument in terms of fundamental liberties, discussing the boundary that a Constitutional government should resist by “coerc(ing) unifor-mity of sentiment.” Id. at 641. In proceeding directly to the matter of the flag salute, Justice Jackson wrote in plain words:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own…. But freedom to differ is not limited to

things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. Id. at 642.

In oft-quoted language, Justice Jackson stated:If there is any fixed star in our constitutional constel-lation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, reli-

gion, or other matters of opinion or force citizens to confess by word or act their faith therein.… Id. In contrast to the violence that erupted af-ter the Gobitis case, the Supreme Court’s change of heart in the Barnette opinion was welcomed by the public and by national publications. There were practical implications, as well: the practice of expel-ling school children for failure to “salute” the flag ended everywhere. On Dec. 2, 1942, a national Pledge of Allegiance was adopted by law, which instituted the “hand-over-the-heart” gesture to replace the extended arm “salute,” but without a mandatory requirement or a penalty provision.7 I cannot think of a better tribute to “Law Day” than Barnette, where issues of fundamental liberties are

decided by courts and canons of law. As Justice Jackson observed, “[W]e act in these matters not by authority of our competence but by force of our commissions … [H]istory authenticates … the function of this Court when liberty is infringed.” Barnette, supra, at 640.

About the Author: James C. McKay is the Chief General Counsel for the Regulation and Licensing Department and is a retired Army Judge Advocate Colonel.

School children in Connecticut say the Pledge of Allegiance in 1942. Library of Congress.

Endnotes:1 Proclamation No. 3221, 3 CFR 143(c) (1985) PDF 291 KB2 Pub.L 87-20, 75 Stat. 43, April 7, 1961, codified in 36 United States Code 113 3 Sutton, Jeffrey S. Hon. Justice, 6th United States Court of Appeals, “Hallows Lecture: Barnette, Frankfurther, and Judicial Review,”

96 Marquette L.Rev. Issue 1, Fall 2012, 133 (2012)4 Constitutional Law Stories, Foundation, Press, edited by Michael Dorf (N.Y., N.Y.) 2004, p 442, quoting David R. U.S. 586, 60 S. Ct. 1010, 84 L.Ed. 1375 (1940), US LEXIS 1136 (https://supremejusticia.com/us/310/586/html) Manwaring, Render Unto Ceasar: The Flag Controversy (1962), at 30.5 Dorf, supra at 445.7 Pub.L. 829, 77th Cong., 56 Stat. 1074, H.J. Res. 303 enacted Dec. 22, 1942, as amended by Pub.L 396, 83rd Cong., 68 Stat. 249, H.J. Res. 243, enacted June 14, 1954 (adding the words “under God,” after “One Nation.”)

https://supremejusticia.com/us/310/586/html


In the Supreme Court of the State of New Mexico

Juror Appreciation Week RecognitionApril 28–May 2, 2014

WHEREAS, the right to a trial by jury is one of the core values of American citizenship;

WHEREAS, the obligation and privilege to serve as a juror are as fundamental to our democracy as the right to vote;

WHEREAS, our courts depend upon citizens to serve as jurors;

WHEREAS, service by citizens as jurors is indispensable to the judicial system;

WHEREAS, all citizens are encouraged to respond when summoned for jury service;

WHEREAS, a continuing and imperative goal for the courts, the bar, and the broader community is to ensure that jury selection and jury service are fair, effective, and not unduly burdensome on anyone; and

WHEREAS, one of the most significant actions a court system can take is to show appreciation for the jury system and for the tens of thousands of citizens who annually give their time and talents to serve on juries.

BE IT RESOLVED that the New Mexico State Courts are committed to the following goals:

educating the public about jury duty and the importance of jury service;

applauding the efforts of jurors who fulfill their civic duty;

ensuring that the responsibility of jury service is shared fairly by supporting employees who are called upon to serve as jurors;

ensuring that the responsibility of jury service is shared fairly among all citizens and that a fair cross section of the community is called for jury service including this State’s non-English speaking population;

ensuring that all jurors are treated with respect and that their service is not unduly burdensome;

providing jurors with tools that will assist their decision making; and

continuing to improve the jury system by encouraging productive dialogue between jurors and court officials.

NOW, THEREFORE, I, Barbara J. Vigil, Chief Justice of the Supreme Court of New Mexico, do hereby recognize the week of April 28 - May 2, 2014, as Juror Appreciation Week in New Mexico and encourage all state courts in New Mexico to support the celebration of this week.

DONE in Santa Fe, New Mexico, this 9th day of April, 2014.

Barbara J. Vigil, Chief Justice


In the Supreme Court of the State of New Mexico

Law Day Recognition - Law Day 2014Law Day began 56 years ago, with a proclamation from President Eisenhower. That first proclamation eloquently set forth the reasons why we, as a free people, celebrate our heritage of liberty under law.

President Eisenhower noted that it was “fitting that the people of this nation should remember with pride and vigilantly guard the great heritage of liberty, justice, and equality under law that our forefathers bequeathed to us.” Further, he said that it is “our moral and civic obligation as free [people] and as Americans to preserve and strengthen that great heritage.”

In celebrating Law Day this year, let us dedicate ourselves to the great values protected and preserved in our Constitution.

And, at the same time, let us recognize that democracy is not static, that we must always work to improve and perfect it. Let us seek to draw ever closer to the ideal hand carved into the woodwork above the bench of the Supreme Court of New Mexico: “Dedicated to the Administration of Equal Justice Under Law.”

Let us resolve that Law Day be an opportunity for all of us, in government and the private sector, to examine our efforts to make equal justice a reality, and to work together to reach that goal.

For more than 100 years, America’s charitable institutions and foundations, its lawyers and its courts, and countless others have worked to bring equal justice to as many people as possible.

Law Day 2014 is an opportune time to recognize the work of those who try to make courts accessible and justice equal:

Legal services organizations who provide legal services to those unable to afford them;

Pro Bono Publico programs under which private lawyers accept worthy cases at no fee;

Lawyer referral programs that help people find appropriate legal services;

Court programs designed to inform the public about laws and legal procedures, provide interpreters for those who need them, and generally make courts accessible.

We salute these efforts, but let us offer greater support to those who work daily to provide legal services to those who most need them. Let us dedicate ourselves to improving our courts and our justice system, so that we will truly have “justice for all.”

NOW, THEREFORE, I, Barbara J. Vigil, Chief Justice of the Supreme Court of New Mexico, do hereby recog-nize Thursday, May 1, 2014, as Law Day, and I urge the legal professionals of New Mexico to recognize and participate in the observance of this the designated day.

DONE in Santa Fe, New Mexico, this 9th day of April, 2014.

Barbara J. Vigil, Chief Justice


Legal EducationApril

22–23 Law of Religious Organizations, Parts 1–2

2.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

25 The Brain-Smart Negotiator: Skills and Practices for the Effective Litigator

6.0 G Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

25 33rd Annual Update on New Mexico Tort Law

Live Seminar Crowne Plaza Albuquerque New Mexico Trial Lawyers’ Foundation 6.2 G 505-243-6003 www.nmtla.org

29 2013 Employment and Labor Law Institute

5.0 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

29 Fluff is for Pillows, Not Legal Writing

2.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

29 Ethicspalooza: Charging a Reasonable Fee

1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

29 Practical Tips and Advice from Judge Alan Torgerson


29 Ethicspalooza: The Ethics of Social Media Use


29 Sale/Leaseback Transactions in Real Estate


30 Ethics, Technology and Small Firms 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

1 Trusts and the New Medicare Tax 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

2 11th Annual Spring Elder Law Institute: Current Medical Developments Every Elder Law Attorney Should Know


May

2 3rd Annual Public Access to Government Seminar

6.0 G, 1.0 EP Live Seminar New Mexico Foundation for Open

Government 505-764-3750 www.nmfog.org

6 The 29th Annual Bankruptcy Year in Review


6 Solo and Small Firm Annual Institute “Practice Management: What You

Don’t Know Can Hurt You” 3.5 G, 2.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

6 Wildlife Law 6.7 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

http://www.nmbarcle.org


http://www.nmtla.org










http://www.nmfog.org





Legal Education www.nmbar.org

May

20 Skeptically Determining the Limits of Scientific Evidence V


20 Navigating the Privileges Minefield 5.5 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

20 The Fear Factor: How Good Lawyers Get Into Bad Trouble


20 2014 Sexual Harassment Update 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

21 Techniques for Tax Efficiently Withdrawing Capital From a Closely Held Company


27 Securities Issues for Closely Held Companies


28 UCC Issues in Real Estate Transactions


29 Trust Investments: A Guide to Trustee Duties & Liability Under the UPIA


30 Accounting for Lawyers 6.0 G Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

30 Attorney Ethics and Social Media 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

6 Limitations on Closely Held Company Owners-Business Opportunities and Non-competes


8–9 2014 Advanced Collaborative Practice Symposium


9 Ethics of Beginning and Ending an Attorney-Client Relationship

1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

15 Role of “Trust Protectors” in Trust Planning


16 Ethics of Working With Witnesses


June

1–8 CLE at Sea: Alaska 10.0 G, 2.0 EP Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

3 Family Feuds in Trusts 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

4–5 Ethics in Litigation Update, Parts 1–2


10 The Perils of Using “Units” in LLC Planning























Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Writs of CertiorariAs Updated by the Clerk of the New Mexico Supreme Court

Petitions for Writ of Certiorari Filed and Pending:

Date Petition FiledNo. 34,644 Valenzuela v. Snyder COA 32,680 04/11/14No. 34,683 State v. Gamble COA 33,178 04/11/14No. 34,449 Richter v. Presbyterian

Healthcare COA 30,926/31,004 04/11/14No. 34,641 Dixon v. Bravo 12-501 04/10/14No. 34,640 State v. Weiss COA 32,611 04/09/14No. 34,639 State v. Mondragon COA 33,075 04/09/14No. 34,637 State v. Serros COA 31,975 04/07/14No. 34,635 Graham v. Hatch 12-501 04/07/14No. 34,634 State v. Miller COA 33,060 04/07/14No. 34,632 State v. Jaques COA 32,497 04/07/14No. 34,630 State v. Ochoa COA 31,243 04/07/14No. 34,571 Fresquez v. State 12-501 04/07/14No. 34,629 Edwards v. Sexson COA 32,865 04/04/14No. 34,628 State v. Fernandez COA 33,252 04/04/14No. 34,623 State v. Clayton COA 33,039/33,074 04/02/14No. 34,622 State v. Portillo COA 33,038 04/02/14No. 34,621 Varela v. Ortiz COA 32,978 04/02/14No. 34,620 State v. Lee COA 33,205 03/31/14No. 34,619 State v. Cannon COA 32,127 03/31/14No. 34,618 State v. Williams COA 31,773 03/31/14No. 34,617 State v. O’Neill COA 33,170 03/31/14No. 34,613 Ramirez v. State COA 31,820 03/28/14No. 34,611 Musacco v. Franco 12-501 03/28/14No. 34,614 State v. Mitchelle COA 32,956 03/26/14No. 34,608 State v. Baca COA 33,286 03/26/14No. 34,607 Lucero v.

Northland Insurance COA 32,426 03/25/14No. 34,606 French v. Hickson 12-501 03/25/14No. 34,624 Gnau v. Janecka 12-501 03/24/14No. 34,605 State v. Lee COA 31,661 03/24/14No. 34,604 Lopez v. State 12-501 03/21/14No. 34,602 State v. Arreola COA 32,205 03/19/14No. 34,600 State v.

Dominguez COA 32,546/31,975 03/19/14No. 34,599 State v. Lucero COA 33,011 03/19/14No. 34,598 State v. Gleeson COA 33,022 03/18/14No. 34,584 Escobar v.

Sunray Gaming COA 32,846 03/12/14 Response ordered; due 4/28/14No. 34,573 El Paso Machine & Steel v.

DND Contractors COA 33,214 03/05/14 Response filed 4/3/14No. 34,563 Benavidez v. State 12-501 02/25/14No. 34,554 Miller v. Bank of America COA 31,463 02/19/14No. 34,550 Jernigan v. Romero 12-501 02/17/14No. 34,560 Hartzell v. State 12-501 02/11/14No. 34,542 Chase v. State 12-501 02/06/14No. 34,470 MacLennan v. Michel COA 31,026 02/03/14 Response ordered; due 5/21/14

No. 34,476 State v. Pfauntsch COA 31,674 01/27/14 Response ordered; due 3/17/14No. 34,467 Bertola v. State 12-501 01/17/14No. 34,501 Snow v. Warren Power COA 32,335 01/13/14No. 34,289 Tafoya v. Stewart 12-501 08/23/13No. 34,303 Gutierrez v. State 12-501 07/30/13No. 34,170 Holguin v. Nance 12-501 05/23/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13No. 33,868 Burdex v. Bravo 12-501 11/28/12 Response ordered; filed 1/22/13No. 33,819 Chavez v. State 12-501 10/29/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,539 Contreras v. State 12-501 07/12/12 Response ordered; due 10/24/12No. 33,630 Utley v. State 12-501 06/07/12

Certiorari Granted but not yet Submitted to the Court:

(Parties preparing briefs) Date Writ IssuedNo. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,837 State v. Trujillo COA 30,563 11/02/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,952 Melendez v.

Salls Brothers COA 32,293 01/18/13No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 34,076 State v. Martinez COA 32,424 04/19/13No. 34,124 State v. Cortina COA 30,317 05/24/13No. 34,122 State v. Steven B. consol. w/

State v. Begaye COA 31,265/32,136 07/12/13No. 34,204 Faber v. King COA 31,446 07/12/13No. 33,994 Gonzales v. Williams COA 32,274 08/30/13No. 33,863 Murillo v. State 12-501 08/30/13No. 33,810 Gonzales v. Marcantel 12-501 08/30/13No. 34,271 State v. Silvas COA 30,917 09/20/13No. 34,300 Behrens v. Gateway COA 31,439 09/27/13No. 34,286 Yedidag v.

Roswell Clinic Corp. COA 31,653 09/27/13No. 34,349 Harrison v. Lovelace Health

System, Inc. COA 32,215 10/18/13No. 34,311 State v. Favela COA 32,044 10/18/13No. 34,295 Dominguez v. State 12-501 10/18/13No. 34,380 Cohen v.

Continental Casualty Co. COA 32,391 11/15/13No. 34,365 Potter v. Pierce COA 31,595 11/15/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,398 State v. Garcia COA 31,429 12/04/13No. 34,387 Perea v. City of

Albuquerque COA 31,605/32,050 12/04/13No. 34,400 State v. Armijo COA 32,139 12/20/13No. 34,455 City of Santa Fe v.

Tomada COA 32,407 01/10/14No. 34,435 State v. Strauch COA 32,425 01/10/14

Effective April 11, 2014


Writs of CertiorariNo. 34,499 Perez v. N.M. Workforce

Solutions Dept. COA 32,321/32,330 02/07/14No. 34,498 Hightower v. State 12-501 02/07/14No. 34,488 State v. Norberto COA 32,353 02/07/14No. 34,487 State v. Charlie COA 32,504 02/07/14No. 34,447 Loya v. Gutierrez COA 32,405 02/07/14No. 34,443 Aragon v. State 12-501 02/14/14No. 34,516 State v. Sanchez COA 32,994 02/14/14No. 34,473 Mandeville v.

Presbyterian Healthcare COA 32,999 03/07/14No. 34,548 State v. Davis COA 28,219 03/14/14No. 34,546 N.M. Dept. Workforce Solutions v.

Garduno COA 32,026 03/14/14No. 34,558 State v. Ho COA 32,482 03/21/14No. 34,549 State v. Nichols COA 30,783 03/28/14No. 34,526 State v. Paananen COA 31,982 03/28/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,583 State v. Djamila B. COA 32,333 04/11/14No. 34,582 State v. Sanchez COA 32,862 04/11/14

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oral argument or briefs-only submission) Submission Date

No. 33,296 State v. Gutierrez COA 29,997 09/12/12No. 33,014 State v. Crane COA 29,470 11/13/12No. 33,324 State v. Evans COA 31,331 11/26/12No. 33,483 State v. Consaul COA 29,559 12/17/12No. 33,382 N.M. Human Services v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,383 Presbyterian Health Plan v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,384 Cimarron Health Plan v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,594 Fallick v. Montoya COA 30,172 03/13/13No. 33,589 Zhao v. Montoya COA 30,172 03/13/13No. 33,632 First Baptist Church of Roswell v.

Yates Petroleum COA 30,359 03/13/13No. 33,548 State v. Marquez COA 30,565 04/15/13No. 33,567 State v. Leticia T. COA 30,664 04/30/13No. 33,566 State v. Leticia T. COA 30,664 04/30/13No. 33,592 State v. Montoya COA 30,470 05/15/13No. 33,565 State v. Ballard COA 30,187 05/30/13No. 33,226 State v. Olsson COA 29,713 05/30/13No. 33,971 State v. Newman COA 31,333 07/24/13No. 33,808 State v. Nanco COA 30,788 08/14/13No. 33,862 State v. Gerardo P. COA 31,250 08/14/13No. 33,993 Fowler v. Vista Care and American

Home Insurance Co. COA 31,438 08/14/13No. 33,896 Rodriguez v. Del Sol

Shopping Center COA 30,421/30,578 08/26/13

No. 33,949 Rodriguez v. Del Sol Shopping Center COA 30,421/30,578 08/26/13

No. 33,770 Vaughn v. St. Vincent Hospital COA 30,395 08/26/13

No. 33,969 Safeway, Inc. v. Rooter 2000 Plumbing COA 30,196 08/28/13

No. 33,938 State v. Crocco COA 31,498 08/28/13No. 33,898 Bargman v. Skilled Healthcare

Group, Inc. COA 31,088 09/11/13No. 34,007 City of Albuquerque v.

AFSCME Local 3022 COA 31,075 09/24/13No. 34,039 Cavu Co. v. Martinez COA 32,021 09/30/13No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 10/28/13No. 34,083 Amethyst v. Terhune COA 31,165 10/28/13No. 33,847 State v. Urquizo COA 30,337 10/30/13No. 34,013 Foy v. Austin Capital COA 31,421 11/14/13No. 33,970 State v. Parvilus COA 30,379 11/25/13No. 34,085 Badilla v. Walmart COA 31,162 12/04/13No. 34,146 Madrid v.

Brinker Restaurant COA 31,244 12/09/13No. 34,126 State v. Maurice H. COA 31,597 12/16/13No. 34,128 Benavides v.

Eastern N.M. Medical COA 32,450 12/18/13No. 33,604 State v. Ramirez COA 30,205 01/14/14No. 34,009 State v. Huettl COA 31,141 01/14/14No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,194 King v. Faber COA 34,116 02/24/14No. 33,999 State v. Antonio T. COA 30,827 02/26/14No. 33,997 State v. Antonio T. COA 30,827 02/26/14No. 34,150 Kimbrell v.

Kimbrell COA 30,447/31,491 03/24/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14No. 34,120 State v. Baca COA 31,442 03/26/14No. 34,235 State v. Alverson COA 32,046 04/28/14No. 33,754 State v. Garcia 12-501 04/29/14

Opinion on Writ of Certiorari:

Date Opinion FiledNo. 32,860 State v. Stevens COA 29,357 04/07/14

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 34,612 Valtierra v. State 12-501 04/09/14No. 34,578 Gayton v. State 12-501 04/08/14


OpinionsAs Updated by the Clerk of the New Mexico Court of Appeals

Wendy F. Jones, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925


Slip Opinions for Published Opinions may be read on the Court’s website:http://coa.nmcourts.gov/documents/index.htm

Published Opinions

No. 32246 WCA 06-5029, L BRASHAR v REGENTS OF THE UNIVERSITY (reverse and remand) 04/9/2014No. 32260 2nd Jud Dist Bernalillo CV-10-6999, G MAESE v D GARRETT (affirm) 04/10/2014

Unublished Opinions

No. 32888 WCA 12-647, J ARMENDARIZ v BERNALILLO (affirm) 04/08/2014No. 32982 2nd Jud Dist Bernalillo DV-12-234, B DERRINGER v D DERRINGER (affirm) 04/08/2014No. 33340 3rd Jud Dist Doña Ana CV-13-275, AVALLONE v CITY OF LAS CRUCES (affirm) 04/08/2014No. 33468 2nd Jud Dist Bernalillo JQ-13-98, CYFD v RAUL J (affirm) 04/08/2014No. 32037 3rd Jud Dist Doña Ana CV-09-834, U WEST v NM TAX & REV (affirm) 04/08/2014 No. 33200 5th Jud Dist Chaves CR-12-447, STATE v R HODGE (affirm) 04/09/2014No. 33232 3rd Jud Dist Doña Ana CR-09-1249, STATE v M SALAZAR (reverse and remand) 04/09/2014No. 33293 11th Jud Dist San Juan LR-12-66, CITY OF FARMINGTON v J RUSSELL (reverse) 04/09/2014No. 33298 2nd Jud Dist Bernalillo LR-20-70, STATE v J CARRILLO (affirm) 04/09/2014No. 31482 2nd Jud Dist Bernalillo CV-09-5628, ASTANTE AT CABEZON v AMMRE (reverse and remand) 04/09/2014No. 32604 3rd Jud Dist Doña Ana CR-12-638, STATE v E CLAY (affirm) 04/09/2014No. 33430 2nd Jud Dist Bernalillo CR-10-5486, STATE v K NICHOLS (affirm) 04/10/2014

http://coa.nmcourts.gov/documents/index.htm


Clerk’s CertificatesFrom the Clerk of the New Mexico Supreme CourtJoey D. Moya, Chief Clerk New Mexico Supreme Court

PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Dated March 26, 2014

Clerk’s Certificate of Address and/or

Telephone Changes

Daniel G. AcostaAcosta, Anderson & Obrey-Espinoza500 Marquette Avenue NW, Suite 1050Albuquerque, NM 87102505-248-3503505-246-2924 (fax)[email protected]

Barbara Ball126 Graham Street SEPort Charlotte, FL [email protected]

Renee Barela-GutierrezPO Box 3007Corrales, NM [email protected]

George Anthony BleusBleus & Associates, LLC2633 Dakota NEAlbuquerque, NM 87110505-884-9300505-884-9305 (fax)[email protected]

Dean E. BorderBorder Law Office, PA12300 Menaul Blvd. NEAlbuquerque, NM 87112505-243-6888505-842-6042 (fax)[email protected]

Douglas Carter ChristophersonHoffman Kelley, LLP1700 Louisiana Blvd. NE, Suite 200Albuquerque, NM 87110505-346-3130800-787-9748 (fax)[email protected]

John H. Clough1404 Concordia DriveBoonville, MO [email protected]

Francie Cordova720 Braddock CourtDavis, CA [email protected]

Harvey B. FrumanMcCoy Leavitt Laskey LLC1805 Rio Grande Blvd. NW, Suite 2Albuquerque, NM [email protected]

Marcelino R. GomezSalt River Pima Maricopa Indian Community10005 East Osborn RoadScottsdale, AZ 85256480-362-7450480-362-7591 (fax)Marcelino.Gomez@ srpmic-nsn.gov

Lisa N. Gover43 Placitas Trails RoadPlacitas, NM [email protected]

Farhan KhanArkansas Department of Human ServicesPO Box 1437, S260Little Rock, AR [email protected]

Robert Francis MedinaPueblo of Zia135 Capitol Square DriveZia Pueblo, NM 87053505-867-3304505-867-3308 (fax)[email protected]

Matthew MosesBabst CallandTwo Gateway Center, 6th FloorPittsburgh, PA 15222412-394-5400412-586-1040 (fax)[email protected]

Arturo B. Nieto2900 Louisiana Blvd. NE, Suite E-2Albuquerque, NM 87110505-247-1973505-247-1975 (fax)[email protected]

Cheryl P. O’Connor2308 Cedros CircleSanta Fe, NM 87505505-239-0324505-459-0969 (fax)[email protected]

William M. O’ConnorOffice of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM 87102-2159505-841-5079505-841-5006 (fax)William.O’[email protected]

William Daryl Robinson2804 Lilley Cove DriveChesapeake, VA [email protected]

Jennifer Rodriguez RodgersR & R Family Law2626 Central Avenue SWAlbuquerque, NM 87104505-433-1399505-435-9024 (fax)[email protected]

Les W. SandovalThe Law Office of Les W. Sandoval7001 Menaul Blvd. NE, Mail Box #7Albuquerque, NM 87110505-299-9140505-299-9144 (fax)[email protected]

Joshua L. SmithWatson Law Office, LLC1100 S. Main Street, Suite 21Las Cruces, NM 88005575-528-0500575-526-9094 (fax)[email protected]

Sarah Van CottOffice of the Third Judicial District Attorney845 North Motel Blvd., 2nd Floor, Suite DLas Cruces, NM 88007-8100575-524-6370 Ext. 1147575-647-8524 (fax)[email protected]

John Bryan VerheulNew Mexico Environment DepartmentPO Box 54691190 St. Francis Drive, Suite N-4050 (87505)Santa Fe, NM 87502-5469505-827-0528505-827-1628 (fax)[email protected]

Julia Victoria Gregory WhiteEnlace ComunitarioPO Box 8919Albuquerque, NM 87198-8919505-246-8972 Ext. 24505-246-8973 (fax)[email protected]























Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Recent Rule-Making ActivityAs Updated by the Clerk of the New Mexico Supreme Court


Pending Proposed Rule Changes Open for Comment:

Comment Deadline

Please see the special summary of proposed rule amendments published in the April 2 issue of the Bar Bulletin (Vol. 53, No. 14, page 16). 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 30, 2014.

Recently Approved Rule Changes Since Release of 2013 NMRA:

Effective Date

Rules Governing Admission to the Bar15 102 Admission requirements. 06/1/1515 103 Qualifications. 06/1/1515 105 Application fees 06/1/1515 107 Admission by motion. 06/1/15

None - Please note that all rule amendments Approved on November 1, 2013, and effective December 31, 2013, now appear in the hard copy version of the New Mexico Rules Annotated and can also be found on the New Mexico Compilation Commission’s website.

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.

http://nmsupremecourt.nmcourts.gov

http://www.nmcompcomm.us


http://www.nmcompcomm.us/Advance Opinions

From the New Mexico Supreme Court

Opinion Number: 2014-NMSC-008

Topic Index:Administrative Law and Procedure: Arbitrary and Capricious Actions; Standard of Review;

and Sufficiency of EvidenceAppeal and Error: Standard of Review; and Substantial or Sufficient Evidence

Civil Procedure: MootnessConstitutional Law: Mootness

Corporations: Public Regulatory CommissionGovernment: Motor Carriers

BERNALILLO COUNTY HEALTH CARE CORPORATION, d/b/a ALBUQUERQUE AMBULANCE SERVICE,Appellant,

v.NEW MEXICO PUBLIC REGULATION COMMISSION,

Appellee,and

RUNNING BEAR, INC., d/b/a ROCKY MOUNTAIN EMS and AMERICAN MEDICAL RESPONSE AMBULANCE SERVICE, INC.,Real Party in Interest

No. 33,025 (filed February 20, 2014)

Consolidated with

SUPERIOR AMBULANCE COMPANY INC.,Appellant,

v.NEW MEXICO PUBLIC REGULATION COMMISSION,

Appellee,and

RUNNING BEAR, INC., d/b/a ROCKY MOUNTAIN EMS,Real Party in Interest

No. 33,054

APPEAL FROM THE NEW MEXICO PUBLIC REGULATION COMMISSION

RANDY S. BARTELLLARA KATZ

MONTGOMERY & ANDREWS, P.A.Santa Fe, New Mexico

for Appellant Bernalillo County Health Care Corporation d/b/a

Albuquerque Ambulance Service

F. M. MOWRERSANCHEZ, MOWRER &

DESIDERIO, P.C.Albuquerque, New Mexico

KATHLEEN ROSEMARY BRYANROSE BRYAN, P.C.

Los Angeles, Californiafor Appellant Superior Ambulance

Company Inc.

MARGARET KENDALL CAFFEY-MOQUIN

Santa Fe, New Mexicofor Appellee New Mexico Public

Regulation Commission

MICHAEL J. CADIGANJAMES J. GRUBELCADIGAN & PARK

Albuquerque, New Mexicofor Real Party in Interest Running Bear, Inc., d/b/a

Rocky Mountain EMS

EMILY A. FRANKEW. ANN MAGGIORE

BUTT, THORNTON & BAEHR, P.C.Albuquerque, New Mexico

for Real Party in Interest American Medical Response

Ambulance Service, Inc.

http://www.nmcompcomm.us/


http://www.nmcompcomm.us/Advance OpinionsOpinion

Petra Jimenez Maes, Chief Justice1 This is a direct appeal from a final or-der of the New Mexico Public Regulation Commission (the Commission), authoriz-ing Running Bear, d/b/a Rocky Mountain EMS (Rocky Mountain), to provide per-manent motor transport authority for non-emergency ambulance transport services in Bernalillo County. We consolidated the separate appeals from the Appellants, Ber-nalillo County Health Care Corporation, d/b/a Albuquerque Ambulance Service (Albuquerque Ambulance) and Superior Ambulance Company (Superior). The real party in interest in both cases was Rocky Mountain. However, Rocky Mountain filed a petition for bankruptcy and American Medical Response (AMR) purchased the authority of Rocky Mountain to operate its ambulance service. This purchase was approved by both the Commission1 and the United States Bankruptcy Court for the District of New Mexico. Thus, AMR has been substituted for Rocky Mountain as an intervening party in this appeal.2 Appellants argue that the final order was arbitrary and capricious because Rocky Mountain failed to satisfy the statu-tory requirements of NMSA 1978, Section 65-2A-8 (2003) which is part of the New Mexico Motor Carrier Act (the Act), NMSA 1978, §§ 65-2A-1 to -40 (2003, as amended through 2007). Intervening party AMR argues that any fitness issues relating to Rocky Mountain are moot fol-lowing AMR’s purchase of the operating license.3 We hold that fitness issues relating to Rocky Mountain are not moot and that the final order issued by the Commission was arbitrary and capricious. Therefore, we annul and vacate the final order of the Commission and revoke the original certificate endorsement allowing Rocky Mountain to provide non-emergency ambulance transport services in Bernalillo County.I. PROCEDURAL HISTORY4 Rocky Mountain had provided am-bulance transport services in San Miguel, Los Alamos, and Santa Fe Counties since 1991. Rocky Mountain filed an original application for endorsement and original request for temporary authority with the Commission on March 15, 2010, seeking

authority to provide ambulance services in Bernalillo County. Albuquerque Am-bulance and Superior, the two primary local providers in Bernalillo County, op-posed the application and filed motions to intervene in the proceedings before the Commission. The director of the Trans-portation Division recommended that the application be denied. The Commission rejected the director’s recommendation, granted Rocky Mountain’s application for temporary authority, and referred the issue of permanent authority to a hearing examiner at the Commission.5 After a hearing on Rocky Mountain’s application for permanent authority, the hearing examiner issued a decision recommending that the application be denied because Rocky Mountain was not fit, willing, and able to provide ambulance services at the time of its application, nor had the company been in compliance with applicable laws and regulations. The Com-mission rejected the hearing examiner’s recommendation and issued its final order granting Rocky Mountain limited author-ity to provide non-emergency ambulance transport services in Bernalillo County but, among other requirements, limiting the number of vehicles it could operate, requiring random spot checks of vehicles, and requiring that Rocky Mountain submit verified financial statements to the Com-mission on a quarterly basis. Because the final order did not authorize emergency 911 services and Rocky Mountain did not challenge that aspect of the order, this appeal focuses solely on provision of non-emergency ambulance transport services in Bernalillo County.6 About two weeks after the Commis-sion issued its final order, Rocky Moun-tain filed a petition for bankruptcy. AMR subsequently purchased Rocky Mountain’s authority to operate its ambulance services with the approval of both the Commission and the United States Bankruptcy Court for the District of New Mexico. See n.1.7 In this direct appeal, Albuquerque Ambulance and Superior request that this Court reverse the Commission’s grant of authority to Rocky Mountain, annul and vacate the final order, and revoke the certificate endorsement allowing Rocky Mountain to provide non-emergency ambulance transport services in Bernalillo County. The Commission requests that this Court affirm the Commission’s final

order on the merits because the criteria of the Act for granting the amended cer-tificate were met. Alternatively, the Com-mission argues that this appeal is moot due to the transfer of authority to AMR, and thus the Supreme Court should not decide this case. AMR asserts that all issues relating to Rocky Mountain are now moot because Rocky Mountain is no longer a real party in interest, and asserts that the only remaining issue, public need, was established by substantial evidence and should be affirmed.8 This Court has jurisdiction over these appeals pursuant to Section 65-2A-35 and Rule 12-102(A)(2) NMRA.II. STANDARD OF REVIEW9 This Court must affirm the Commis-sion’s order unless the order is “arbitrary, capricious or an abuse of discretion” or “not supported by substantial evidence in the record.” Section 65-2A-35(C)(1) & (2). An agency’s ruling is arbitrary and capricious if the agency “failed to consider an important aspect of the problem, of-fered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view.” Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 12, 133 N.M. 97, 61 P.3d 806 (internal quotation marks and citation omitted). “An agency abuses its discretion when its decision is not in accord with legal procedure or supported by its findings, or when the evidence does not support its findings.” Oil Transp. Co. v. N.M. State Corp. Comm’n, 1990-NMSC-072, ¶ 25, 110 N.M. 568, 798 P.2d 169. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” In re Comm’n’s Investigation of the Rates for Gas Serv. Of PNM’s Gas Servs., 2000-NMSC-008, ¶ 6, 128 N.M. 747, 998 P.2d 1198.10 An agency’s ruling regarding statu-tory construction is reviewed de novo. See Albuquerque Bernalillo Cnty. Water Util. Auth. v. N.M. Pub. Regulation Comm’n, 2010-NMSC-013, ¶ 50, 148 N.M. 21, 229 P.3d 494 (“Statutory construction is not a matter within the purview of [the Commission’s] expertise and, therefore, we afford little, if any, deference to [the Commission] on this matter.” (internal quotation marks, citations, and alterations omitted)).

1 See Final Order Conditionally Approving Transfer of Authority, Commission Case No. 11-00453-TR-T, issued Mar. 16, 2012.; In re Running Bear Rescue, Inc., No. 11-12453-s11 (Bankr. D.N.M. 2011).



http://www.nmcompcomm.us/Advance OpinionsIII. DISCUSSIONA. The issue of Rocky Mountain’s

fitness, willingness, and ability to provide services is not automatically mooted by AMR’s acquisition of the certificate of authority

11 AMR asserts that all issues relating to the fitness of Rocky Mountain are moot now that “the authority to operate has, upon full Commission and Bankruptcy Court review, consideration, and ap-proval, been sold to AMR.” AMR asserts that following “a determination that AMR [was] fit to provide the transport services, on December 8, 2011, the [Commission] granted Temporary Authority to AMR for the transfer of the Bernalillo County portion of [Rocky Mountain’s certificate].” AMR contends that at this juncture AMR is the real party in interest, and therefore whether Rocky Mountain violated any provision of the Act or is fit, willing, and able to provide services is moot, is not a question of substantial public interest, and is not an issue that is capable of repetition yet evading review.12 Albuquerque Ambulance argues that a controversy capable of repetition still exists because “neither the purchase of the Certificate out of bankruptcy, nor the Commission’s approval of that transfer resolves the question [of] whether the Cer-tificate was validly issued in the first place.” Albuquerque Ambulance and Superior assert that by issuing certificates to insol-vent, unfit companies, the Commission is abdicating its statutory duties involving issues of substantial public importance that are capable of repetition and should be addressed by this Court.13 This Court does not address moot issues that will have no practical impact on the parties before us, but we will ad-dress issues of substantial public interest or issues that are capable of repetition, yet evading review. Rivera v. Am. Gen. Fin. Servs., 2011-NMSC-033, ¶ 40, 150 N.M. 398, 259 P.3d 803 (internal quota-tion marks and citations omitted); Howell v. Heim, 1994-NMSC-103, ¶ 7, 118 N.M. 500, 882 P.2d 541 (addressing legality of a superseded regulation where similar issues could arise in future cases yet evade appel-late review). In Howell we held that a regu-lation promulgated by the New Mexico Human Services Department that limited

the duration of time that benefits could be received was an issue capable of repetition yet evading review because a given fiscal year’s budgetary shortfall would likely end before the regulation could be reviewed by an appellate court. Id.14 The fact that AMR was willing to purchase Rocky Mountain’s certificate out of bankruptcy and take over its operations is merely fortuitous and does not automati-cally dispose of the question of validity for the original certificate. As we discuss below, the evidence presented to the hear-ing examiner demonstrated that Rocky Mountain was not fit, willing, and able to provide ambulance services at the time of its application, nor had the company been in compliance with applicable laws and regulations. A situation where the Com-mission disregards statutory criteria in issuing certificates of authority could oc-cur again in the future, with perhaps more dire consequences, when the provider is not bought out and instead precipitously exits the market, upsetting the state of emergency medical services and leav-ing the remaining providers scrambling to cover ambulance transport services. In addition we are concerned with the consistent mishandling of processes by the Commission and it is therefore in the public’s interest that we clarify the limits of the Commission’s power to grant busi-nesses the authority to transport persons. We hold that the validity of the original certificate issued to Rocky Mountain is not moot because this is an issue capable of repetition yet evading review.B. Substantial evidence did not exist

to show that Rocky Mountain was fit, willing, or able to provide non-emergency services at the time of application

15 The Act requires that common motor carriers of persons must obtain a certificate of authority from the Com-mission. The statute in effect at the time the Commission issued the certificate to Rocky Mountain set forth three criteria that must be satisfied before a certificate may be issued to the applicant. Section 65-2A-7. First, the applicant must be fit, willing, and able to provide the service. Section 65-2A-8(B)(1).2 Second, the ap-plicant must be in compliance with the Act and other applicable laws and regulations. Section 65-2A-8(B)(2). Third, there must

be a public need for the services. Section 65-2A-8(B)(3).16 Albuquerque Ambulance argues that the Commission’s finding that Rocky Mountain was fit and able to provide non-emergency transport services was arbitrary and capricious, an abuse of discretion, and not supported by substan-tial evidence. Specifically, Albuquerque Ambulance asserts that the Commission adopted an incorrect standard for deter-mining financial fitness when it defined the term to mean “the ability to provide the service while keeping current with one’s bills.” Albuquerque Ambulance points out that 11 U.S.C. § 101(32)(A)(2012) of the United States Bankruptcy Code defines insolvency as a “‘financial condition such that the sum of such entity’s debts is greater than all of such entity’s property, at a fair valuation.’” Albuquerque Ambulance as-serts that the Commission’s standard was based primarily on the testimony of Rocky Mountain’s sole shareholder, who stated “[s]olvent to me means you’re able to run a business and pay your bills,” which has no basis in law and is therefore arbitrary. Ad-ditionally, Superior argues that the Com-mission’s financial standard is “so low that every single temporarily solvent business that applied for authority would meet the requirement regardless of evidence of past instability or lack of resources to ensure continued future service.” Superior asserts that this standard renders Section 65-2A-8(B)(1) superfluous and conflicts with the Commission’s own imposed requirements for ambulance services pursuant to 18.3.14 NMAC. The Commission states, without explanation, that the Commission’s adop-tion of the definition of financial fitness consistent with the testimony of Rocky Mountain’s sole shareholder was reason-able and consistent with the United States Bankruptcy Code, 11 U.S.C. § 101(32).17 Regardless of which definition is used, Albuquerque Ambulance argues that the record establishes that Rocky Moun-tain was insolvent at the time of its applica-tion. Albuquerque Ambulance asserts that because Rocky Mountain overstated the value of its assets and its liabilities in its application, the balance sheet should have shown that Rocky Mountain’s liabilities ex-ceeded its assets by $100,078. Albuquerque Ambulance argues that the Commission’s finding that “[Rocky Mountain] satisfies,

2 The final order appealed from in these consolidated cases was filed in 2011. The applicable 2003 enactment of Section 65-2A-8(B)(1) includes the word “willing”; the 2013 amendment which is not applicable, does not.


CLE PlannerYour Guide to Continuing Legal EducationM

ay-Ju

ly

CENTER FOR LEGAL EDUCATION

www.nmbarcle.org

Reach us at 505-797-6020.

NetworkingMaterials

Breakfast and Lunch

Courses at the Bar Center include ...

5121 Masthead NE • PO Box 92860, Albuquerque, NM 87199

Inside This Issue • 11th Annual Spring Elder

Law Institute

• 2014 Advanced Collaborative Practice Symposium

• Accounting for Lawyers

• 4th Annual ADR Institute

• Ethicspalooza

• 2014 Annual Meeting

• Video Replays

All courses include CLE credit filing and fees for New Mexico.

2014

Annual Meeting

information

inside!


2 • CLE Planner www.nmbarcle.org

also available viaLIVE WEBCAST

at the standard fee

2.5 G11th Annual Spring Elder Law Institute: Current Medical Developments Every Elder Law Attorney Should KnowFriday, May 2, 2014 • State Bar Center, Albuquerque

Standard fee: $99Elder Law Section and National Academy of Elder Law Attorneys, New Mexico Chapter members, government, legal service attorneys, and Paralegal Division members: $89

Co-sponsors: Elder Law Section and NAELA NM

Noon Lunch (provided at the State Bar Center) and Section Annual Meeting

12:45 p.m. Registration1:15 p.m. Getting the Most out of MOST (Medical Order for

Scope of Treatment) Nancy Guinn, M.D., Medical Director of Presbyterian Home

Healthcare; and Lori Millet, J.D., LL.M., Master of Laws in Elder Law, Albuquerque Elder Law PC

2:15 p.m. Break2:30 p.m. Status of Aid in Dying in New Mexico Robert L. Schwartz, Weihofen Professor of Law, University

of New Mexico School of Law; and Lori Millet4 p.m. Adjournment and Reception at the State Bar Center

2014 Advanced Collaborative Practice Symposium: Focusing on Advocacy and InterestsMay 8-9 • State Bar Center, Albuquerque

Standard fee: $289NMCPG member, government, legal services attorneys and Paralegal Division members: $259

Co-sponsors: New Mexico Collaborative Law Group, Inc.

Featured Speakers: Sherri Goren Slovin, Sherri Goren Slovin and Associates, LPA; and Victoria Smith, Victoria Smith Collaborative Professional Corporation, Collaborative Practice and Mediation

Day 1, Thursday, May 8 2 p.m. Registration2:30-5 p.m. Collaborative Protocols—A Roadmap for Effective

Team Practice5 p.m. Adjournment

Day 2, Friday, May 9 8:30 a.m. Registration8:45 a.m. The Initial Consultation Demonstration and Debrief How do we REALLY set the stage for a Collaborative

Case?

10 a.m. Break10:15 a.m. The Tensions of Collaborative Advocacy and the

Role of Neutrality12:15 p.m. Lunch (provided at the State Bar Center)1 p.m. Mining for Interests—Going Deep 3 p.m. Break 3:15 p.m. The Interplay of Fairness, the Law and Interests4:15 p.m. Wrap Up4:30 p.m. Adjournment

9.0 G

June 1-8, 2014 • Holland America ms AmsterdamDeparting from Seattle’s Puget Sound.

Scenic Tracy Arm • Juneau • Sitka • Ketchikan • Victoria, CanadaArriving in Seattle.

For more information, visit www.nmbarcle.org • 505-797-6020



www.nmbarcle.org CLE Planner • 3


at the standard fee

6.0 GAccounting for LawyersFriday, May 30, 2014 • State Bar Center, Albuquerque

Standard fee: $209Government, legal service attorneys, and Paralegal Division members: $179

8 a.m. Registration8:30 a.m. Accounting Basics Bruce Puma, J.D., C.P.A., Swaim Finlayson & Puma PC Cash vs. Accrual Basis Capitalizing vs. Expensing Financial vs. Tax Accounting Financial Statements10 a.m. Break10:15 a.m. Reading Financial Statements Sara Traub, J.D., C.P.A., Pregenzer Baysinger Wideman &

Sale PC Liquidity Solvency Cash Flows and Income Ratios: What Do They Tell Us? Manipulating Income Business Combinations Intangible Assets11:45 a.m. Lunch (provided at the State Bar Center)

Afternoon session moderator: Jeanine R. Steffy, J.D., C.P.A., Steffy Law Firm PC

12:45 p.m. Accounting in Divorce Samuel L. Baca, C.P.A./A.B.V./C.F.F., C.V.A. and Adam C.

Baca, C.P.A., C.V.A., Baca+Redwine, PC Community Property Tax Reporting1:45 p.m. Forensic Accounting and Litigation Support Samuel L. Baca and Adam C. Baca, Common Underhanded Practices How To Prevent or Catch a Culprit2:45 p.m. Break3 p.m. Business Valuations Samuel L. Baca and Adam C. Baca When Does a Business Need Valuation? How Is Valuation Calculated?4 p.m. Adjournment

6.0 G


at the standard fee

8:30 a.m. Registration9 a.m. Understanding the Physiologic Stress Response

and Its Effects on the Mediation Process10:30 a.m. Break10:45 a.m. Applying the Neuroscience of Emotions, Trust,

Cooperation, and Creativity to Mediation12:15 p.m. Lunch (provided at the State Bar Center)1 p.m. Applying Theory to Practice, Part 1

2 p.m. Break2:15 p.m. Applying Theory to Practice, Part 23:45 p.m. Break4 p.m. General Discussion: Using Tomorrow What

We Learned Today4:30 p.m. Adjourn

4th Annual ADR InstituteHow Neuroscience Helps Mediators Resolve ConflictAn Advanced Training for Lawyers, Negotiators, Facilitators, Collaborators, Mediators, and Clinicians(Rescheduled from Nov. 8, 2013)Friday, June 20, 2014 • State Bar Center, Albuquerque Standard Fee: $209ADR Committee members, government, legal services attorneys, and Paralegal Division members: $179Co-sponsor: ADR CommitteePresenters: Martha K. McClintock, Ph.D., and Jill S. Tanz, Esq. Moderator: David P. Levin, Esq.

PROGRAM FACULTY

Martha K. McClintock, Ph.D., University of Chicago: David Lee Shillinglaw Distinguished Professor, Departments of Psychology and Comparative Human Development, The College; Committees on Neurobiology and Evolutionary Biology.

Jill S. Tanz, Esq., is a full-time neutral in Chicago. Tanz founded Chicago Mediation LLC (www.chicagomediation.com) to offer alternative dispute resolution services to the Chicago area business community.

David P. Levin, Esq., Mediation Coordinator, Magistrate Division, Administrative Office of the Courts, New Mexico Supreme Court, Co-Chair, Statewide ADR Commission, and Chair State Bar of New Mexico ADR Committee.

Not approved for Texas CLE credit.

http://www.chicagomediation.com



at the standard fee

2014 Ethicspalooza Thursday, June 26, 2014 • State Bar Center, AlbuquerqueStandard Fee: $32 per credit hour; $48 per 1.5 credit courseAll Five Courses: $192

1.0-6.0 EP

9-10:30 a.m. Ethically Managing Your Practice 1.5 EP $48 Christine Long, Esq. This session will cover the daily challenges faced by lawyers trying to practice law and run a business, from how to

confirm new representation to how to orderly terminate representation, and everything in between. 10:30-10:45 a.m. Break10:45-11:45 a.m. Conflicts of Interest 1.0 EP $32 William Slease, Esq., Chief Disciplinary Counsel Common conflicts arise in practice. You will learn how to recognize them, how to avoid them, and what to do when

you wake up in the middle of one.11:45 a.m.-12:45 p.m. Lunch (provided at State Bar Center)12:45-1:45 p.m. Charging a Reasonable Fee 1.0 EP $32 Jane Gagne, Esq. What is and is not a reasonable attorneys’ fee? Also learn whether you can charge flat fees, the prohibition against

non-refundable fees, fee-splitting, and contingency fee agreements.1:45-2 p.m. Break2-3:30 p.m. Proper Trust Accounting 1.5 EP $48 Ann Taylor, Esq. A “hands-on” session designed to give participants a chance to learn about and demonstrate proper management

of a trust account—including ledger keeping and reconciliation—and a discussion of the “dos and don’ts” of trust accounts. Also, learn the proper way to handle clients’ non-cash property.

3:30-3:45 p.m. Break3:45-4:45 p.m. The Ethics of Social Media Use 1.0 EP $32 William Slease, Esq., Chief Disciplinary Counsel Facebook, Twitter, and G-chats, oh my! There’s no escaping social media. Learn about the growing need to use social

media in your law practice and the ethical issues associated with that use.

This series of ethics courses, taught by members of the Disciplinary Board of the New Mexico Supreme Court, Office of Disciplinary Counsel, will provide concise, informative, practical, and useful information for the ethical practice of law. Take one, two, three, four, or all five.

Registration will begin half an hour prior to each course.

2014 Annual Meeting–Bench and Bar Conference

July 17-19, 2014 • Hyatt Regency Tamaya Resort and Spa1300 Tuyuna Trail, Santa Ana Pueblo, NM • 888-421-1442

https://resweb.passkey.com/go/STNM2014

$159* single/double • $219* Jr. Suite$50/$60 (single/double) Regency Club

*Add $10 resort fee to room rates (discounted from $20).Cutoff date: June 25

For more information, contact Kris Becker, 505-797-6038.

Make it a Get-A-Way.

Early Room Registration

https://resweb.passkey.com/go/STNM2014



Make your plans now to attend! THURSDAY, JULY 17

8 a.m.Board of Bar Commissioners Meeting

NoonGolf Tournament—Twin Warriors Golf Club

6-9 p.m.Opening Reception (Entertainment: Mystic Vic Blues Band)

FRIDAY, JULY 18 7-8 a.m.Attendee Breakfast

ABA Fellows Breakfast

Young Lawyers Division Compensation Survey Forum

7 a.m.-5 p.m.Registration/Exhibits/Cyber Spot

8 a.m.Introductory RemarksErika E. Anderson, President, State Bar of New Mexico

8:30 a.m.Law, Justice, and the Holocaust (1.0 EP)Dr. William Meinecke, United States Holocaust Museum

9:30 a.m.Civil Justice ReformKaren Mathis, associate executive director, Institute for the Advancement of the American Legal System; past president, ABA

10:30 a.m.Break

10:45 a.m.Legal Aid IssuesRobert J. Grey, Jr., Hunton & Williams LLC; past president, ABA

11:45 a.m.Lunch and Gubernatorial Debate (included in registration fee)

Paralegal Division Lunch

1 p.m.

CLE BREAKOUTSReciprocity Panel Hon. Charles Daniels, New Mexico Supreme Court; Howard Thomas, president, New Mexico Board of Bar Examiners; Carol Skiba, executive director, New Mexico Board of Bar Examiners; Richard Platt, president, State Bar of Arizona

2014 Legislative UpdateDick Minzner

Mean Girls, Meaner Women: How to Maintain Professionalism and Integrity, and Be Ethical (1.0 EP)Co-sponsored by the Women's Bar Association, Committee on Women and the Legal ProfessionYasmin Dennig, Rochelle Lari

Social Media and the LawCo-sponsored by the Paralegal DivisionLeon Howard III

1 p.m.

Disciplinary Board Meeting

New Mexico Hispanic Bar Association Meeting

2 p.m.Break

2:15 p.m.

CLE BREAKOUTS

2014 Civil Procedure UpdateProfessor Max Minzner

The Child Protective Service Process: From Referral to Decision to FileCo-sponsored by the Children's Law SectionDeborah Gray, Grace Hernandez

Bankruptcy Automatic Stay Fundamentals—How Does the Automatic Stay Affect Your State Court Case?Co-sponsored by the Bankruptcy Law SectionTrey Arvizu, Alice Page

Does Diversity Matter in 2014? (1.0 EP)Co-sponsored by the New Mexico Hispanic Bar Association, New Mexico Black Lawyers Association, YLD, SLD, PD, Committee on Diversity in the Legal ProfessionRay Hamilton, Arturo Jaramillo, Sarita Nair

Tentative Schedule

Continued on next page.

2014 Annual Meeting–Bench and Bar ConferenceJustice at Stake

July 17-19, 2014 • Hyatt Regency Tamaya Resort and Spa



2:15 p.m.

Chief Judges Council Meeting

3:15 p.m.Break

3:30 p.m.

CLE BREAKOUTS

Planning Ahead: Protecting Your Clients and Your Practice (1.0 EP)Co-sponsored by the Supreme Court's Committee on Succession and Transition, SLDSandra Morgan Little, Gaelle McConnell, Charles Noland, Jill Anne Yeagley, Moderator: William Slease

Juvenile JusticeCo-sponsored by the Prosecutors SectionKenneth Fladager

How You Can Commit Malpractice Without Knowing Griego v. OliverCo-sponsored by the Lesbian and Gay Lawyers Association, Committee on Diversity in the Legal ProfessionSean Cuniff, Lynn Mostoller, Lynn Perls, Maureen Sanders, Moderator: Hon. Alan Malott

Jury Instructions: Success Without StressCo-sponsored by the Trial Practice SectionJoseph L Romero and TBD

Merit Selection of JudgesDebra Erenberg, director of state affairs, Justice at Stake

3:30 p.m.Women’s Bar Association Annual Meeting

4:30 p.m.Adjourn

4:45 p.m.State Bar Annual Award Ceremony

5 p.m.New Mexico Women's Bar Association Reception

Texas Tech University School of Law Alumni Reception

6-10 p.m.President's Reception/Dinner (Entertainment: Vanilla Pop)

10-midnightYoung Lawyers Division Salsa Mixer

SATURDAY, JULY 19 7-8 a.m.Attendee Breakfast

7 a.m.-5 p.m.Registration/Exhibits/Cyber Spot

8 a.m.The End of Law Firms? How the Cloud is Changing the Practice of LawMark E. Lassiter, The Lassiter Law Firm, Tempe, Ariz.

9 a.m.The ABA Model Rules with Regard to the Changing Practice of Law (1.0 EP)Mark E. Lassiter

10 a.m.Break

Young Lawyers Division Annual Meeting

10:15 a.m.

CLE BREAKOUTS

Criminal Procedure UpdateKim Chavez Cook

Right of PublicityCo-sponsored by the Intellectual Property Law SectionDiane Albert, Kameron Kramer

System: The Good, the Bad and the UglyCo-sponsored by the Solo and Small Firm SectionDonald Becker, Ian Bezpalko

The ABCs of Campaign Finance Law: The Rules, Regulations and Ethical Responsibilities of Running for Public Office in New Mexico (1.0 EP)Co-sponsored by the Young Lawyers DivisionSen. Daniel Ivey-Soto, Robert Lara, Nicole Manning

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http://www.nmcompcomm.us/Advance Opinionsalbeit at a minimal level, the financial fit-ness requirement,” was completely unsup-ported by the evidence.18 Following our review of the record, it is clear that the evidence presented to the hearing examiner showed numer-ous inaccuracies and inconsistencies in the financial information submitted by Rocky Mountain as part of its application pursuant to 18.3.2.15(A) NMAC. During the hearing, evidence was presented that Rocky Mountain significantly overstated its assets on its original application, that Rocky Mountain failed to list its hundreds of thousands of dollars in tax delinquen-cies, that the balance sheet submitted to the Commission overstated Rocky Mountain’s cash on hand by almost $30,000, and that Rocky Mountain neglected to mention two lawsuits for non-payment against it—one for approximately $450,000 by Los Alamos Bank and the other by its own insurance company. Although Rocky Mountain’s CEO provided rebuttal testimony that the company was investigating “ ‘capital infusion from private investors,’ ” Rocky Mountain could not provide any proof of that fact.19 The record before the hearing examiner also demonstrated that Rocky Mountain had failed to pay federal and state taxes in the past and accrued sig-nificant liabilities. Yet the Commission still surprisingly stated, “[w]e find nothing that would warrant a finding that Rocky Mountain is not fit.”20 The Commission did not provide any basis for its authority to redefine fi-nancial fitness, nor did the Commission justify its decision with any authority or explanation in its briefing to this Court. We fail to find a valid argument justify-ing the Commission’s decision to define “financially fit” as keeping current with one’s bills.21 After reviewing the record, we con-clude that the Commission’s holding that Rocky Mountain satisfied the financial re-quirement at a minimal level was arbitrary and capricious and an abuse of discretion.C. The Commission’s interpretation of

Section 65-2A-8(B)(2) as applied to Rocky Mountain’s compliance with applicable laws and regulations is too narrow and conflicts with the goal of the Act

22 The Commission stated in its final order that although Section 65-2A-8(B) “clearly provides that [the Commission] must issue a certificate if an applicant has met all of the statute’s criteria, the [Motor

Carrier] Act is silent on the issue of wheth-er the Commission has the discretion and authority to issue a certificate if the ap-plicant fails to meet one of those criteria.” In resolving that issue, the Commission applied the doctrine of ejusdem generis to determine that “the reference to ‘rules of the Commission and other applicable federal and state laws’ should be construed as those rules and statutes that serve the same or similar purposes of the safety and financial responsibility requirements of the [Motor Carrier] Act,” which does not include all Commission rules or federal and state laws. Applying this construction, the Commission found “that the federal and state tax laws that the intervenors allege that [Rocky Mountain] violated are not within the ambit [of the] statute.” The Commission further found that failure to file a compliant balance sheet, alleged tariff violations, and failure to file contracts were “outside of the types of rules and statutes included within Section 65-2A-8.B(2).” Additionally, the Commission found that Rocky Mountain violated the New Mexico Administrative Code by failing to respond with two EMTs, but the violation was not relevant because the code only applied to emergency situations and the final order only granted them the ability to provide non-emergency services.23 In reviewing the Commission’s determination regarding the scope of Section 65-2A-8(B)(2), “the court should determine and effectuate the intent of the legislature using the plain language of the statute as the primary indicator of legislative intent.” State v. Ogden, 1994-NMSC-029, ¶ 24, 118 N.M. 234, 880 P.2d 845 (internal citations omitted). In construing a statute, this Court “must take care to avoid adoption of a construction that would render the statute’s application absurd or unreasonable or lead to injustice or contradiction.” State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (internal quotation marks and citation omitted).24 Evidence of Rocky Mountain’s nu-merous violations of applicable statutes, rules, and regulations was presented dur-ing the hearing. Specifically, among other deficiencies, Rocky Mountain failed to pay its gross receipt taxes, failed to comply with 18.3.2.15(A)(17) NMAC (requiring a “notarized oath of the applicant attesting that all statements in the application are true and correct”) by providing false state-ments regarding its balance sheets, and failed to have a consultant pharmacist as

required by 16.19.24.10 NMAC. Evidence was presented that Rocky Mountain had been billing at rates other than its tariff rate for scheduled transports in violation of Section 65-2A-20(C). The director of the Transportation Division testified that Rocky Mountain’s past violations included: operating without an appropri-ate authority from the Commission, for which it received a $1,000 fine; respond-ing to emergencies with only one EMT in violation of 18.3.14.11(A)(1) NMAC, which requires a minimum of two EMTs; and false representations made on Rocky Mountain’s website that it offered special services when it was not qualified to pro-vide such services.25 After reviewing the plain language of the Act and the intent of the statute, we conclude that the Commission’s interpre-tation of Section 65-2A-8(B)(2) is too nar-row and conflicts with the goal of the Act. While the Commission was correct that it would be unreasonable to conclude that the Legislature intended that an applicant be denied a certificate for violating any statute or rule, the Commission’s current interpretation excludes material violations of laws and regulations directly bearing on a company’s financial integrity. Excessive unpaid federal and state taxes, false and misleading documentation regarding fi-nances submitted to the Commission, and failure to comply with approved tariff rates are all violations that speak directly to the applicable laws and regulations relating to an applicant’s safety and financial respon-sibilities. The Commission argues that under this interpretation applicants who have received parking violations would be denied. We are not persuaded. None of the parties in these consolidated cases are arguing that the Commission should interpret the statute to include any and all violations of state and federal laws and regulations. Instead, the statute specifically states “applicable” laws and regulations as they relate to safety and finance. There-fore, the Commission’s ruling that Rocky Mountain’s violations of laws and regula-tions specifically pertaining to safety and financial responsibilities were irrelevant was arbitrary and capricious.D. There was substantial evidence of a

demonstrated public need for non-emergency services in Bernalillo County

26 This Court has “always given def-erence to the fact finder, even when [it applies a] whole record review.” DeWitt v. Rent-A-Center Inc., 2009-NMSC-032, ¶



http://www.nmcompcomm.us/Advance Opinions12, 146 N.M. 453, 212 P.3d 341 (internal quotation marks and citation omitted). “We view the evidence in the light most favorable to the decision, but may not view favorable evidence with total disregard to contravening evidence.” Id. (internal quo-tation marks and citation omitted). This Court “neither reweigh[s] the evidence nor replace[s] the fact finder’s conclusions with [its] own.” Id.27 Because we do not reweigh the evi-dence, we defer to the hearing examiner. The thirty-nine affidavits submitted by Rocky Mountain, in addition to the pre-filed testimony of medical professionals relaying problems with non-emergency transport, constituted substantial evidence of a public need for additional providers in Bernalillo County. The Commission’s holding that a public need for additional non-emergency transport existed was not arbitrary and capricious. However, because

the other two statutory criteria were not met, a finding of public need does not automatically validate the certificate issued to Rocky Mountain.IV. CONCLUSION28 Section 65-2A-8(B) requires that all criteria be satisfied before the issuance of a certificate. The Commission clearly disregarded its statutory duties when it found that Rocky Mountain satisfied all three criteria when substantial evidence had been presented to the contrary. We hold that substantial evidence did not ex-ist to show that at the time of application, Rocky Mountain was fit, willing, and able to provide services or had complied with the applicable state and federal regulations. Because the statutory criteria were not met, the Commission’s final order granting permanent authority to Rocky Mountain to provide non-emergency transport ser-vices was arbitrary and capricious.

29 We annul and vacate the Commis-sion’s order. AMR may no longer operate non-emergency transport services under the certificate of authority it purchased from Rocky Mountain, and all of its op-erations pursuant to that certificate must cease. Should AMR seek to provide such services again in the future, AMR must apply for a certificate of authority through the Commission and prove that it satisfies the statutory criteria under the Act.30 IT IS SO ORDERED. PETRA JIMENEZ MAES,

Chief Justice

WE CONCUR:RICHARD C. BOSSON, JusticeEDWARD L. CHÁVEZ, JusticeCHARLES W. DANIELS, JusticeBARBARA J. VIGIL, Justice




Certiorari Denied, December 11, 2013, No. 34,414


Opinion Number: 2014-NMCA-030

Topic Index:Appeal and Error: Remand; and Standard of Review

Commercial Law: CorporationsCorporations: Corporations, General

Domestic Relations: Alimony; Change in Circumstances; and Spousal Support

Property: Community Property; and Separate Property

ROSALYN CLARK,Petitioner-Appellant,

v.FRANK CLARK,

Respondent-AppelleeDocket No. 31,547 (filed August 12, 2013)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYELIZABETH E. WHITEFIELD, District Judge

THOMAS C. MONTOYAATKINSON & KELSEY, P.A.

Albuquerque, New Mexicofor Appellant

BARBARA V. JOHNSONJOHNSON FAMILY LAW, P.C.Albuquerque, New Mexico

for Appellee

Opinion

Timothy L. Garcia, Judge1 Wife appeals the district court’s award of spousal support for a fixed eighteen-month term that was based upon the appor-tionment of wages between Husband and the community but that excluded certain in-come distributions from Husband’s separate Subchapter-S corporation. Wife asserted three claims of error. We have determined that this matter should now be remanded to the district court to address two of the issues raised. First, subject to certain excep-tions, income received from a Subchapter-S corporation owned by a spouse is included when calculating spousal support. Second, the duration of spousal support is controlled by the recipient spouse’s ability to become self-sufficient. Neither of these two issues were adequately addressed by the district court nor was an adequate explanation pro-vided for the deviation from the standards prescribed to establish the duration of spou-sal support and the inclusion of Husband’s income from the Subchapter-S corporation. As a result, we affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND2 Husband and Wife were married in California in 1998. Wife did not work outside the home during the marriage, although she received income of $3,220 per month as an officer of Husband’s sepa-rate property business, IPR, Ltd. IPR is a Subchapter-S corporation and Husband is the sole owner and operator of the busi-ness.3 As a Subchapter-S corporation, all profits and losses from IPR (the K-1 allo-cations) were passed through to Husband, who paid taxes on the parties’ individual income tax return at individual income tax rates. During the marriage, Husband also received both a regular salary from IPR (W-2 income) as well as additional cash distributions from IPR (non-W-2 income), both of these sources of funds were deposited into the same bank ac-count. The district court appointed a Rule 11-706 NMRA financial expert who sup-plied a three-year summary of wages and other distributions paid to Husband by IPR. The average annual wages reported as W-2 income over the three-year period was $423,413, and the average annual

non-W-2 income distributed from IPR was $212,020. The record established that the non-W-2 income distributed from IPR did not match up with the K-1 allocations from IPR that were reported on the par-ties’ tax returns. Based upon this evidence, the district court found that it could not determine from the record what portion of the overall allocations from IPR were actual income received by Husband and what portions were unrelated to income or intended to defray additional income taxes arising from the K-1 allocations received from IPR. Accordingly, based on Husband’s W-2 income alone, it cal-culated Husband’s gross pre-tax income for spousal support purposes as $35,284 per month. The district court also deter-mined that a comparable salary for the field work Husband was performing as a project manager for IPR was only $8,333 per month. Despite the difficulties with calculating Husband’s significant income from IPR, Husband’s pending retirement was also a consideration identified by the district court in making its decision regarding spousal support.4 At the time of the final decree of di-vorce, Husband was 66 years of age, and Wife was 60. Husband’s job was physically demanding and, due to his age and health, he wanted to retire. In fact, Husband testi-fied that the pending divorce action was the only reason he had not retired.5 The parties did not introduce any evidence of Wife’s earning capacity and did not anticipate Wife’s return to work as a viable reality under the circumstances presented to the district court. Wife submitted a budget to the court alleging that her reasonable support needs were $20,078 per month. The district court found that many of Wife’s alleged expenses were unreasonable or not supported by the evidence. The district court explained, as examples, that “$200 per month for a psychic is not a reasonable therapy expense,” and “[v]acations of $1,000 per month [are] not reasonable for an unem-ployed person.” It also considered Wife’s lack of effort to become self-supporting and the fact that “[b]oth parties are of retirement age and need to transition to retirement.” The district court awarded Wife transitional spousal support for an eighteen-month period, in the amount of $6,500 per month, without any findings regarding how she would be supporting herself thereafter.6 The district court entered its final de-cree of divorce and order on July 13, 2011.



http://www.nmcompcomm.us/Advance OpinionsThe court later entered a stipulated order modifying the final decree on August 2, 2011. Wife timely filed her notice of appeal to this Court.DISCUSSIONSpousal SupportA. Standard of Review7 Spousal support represents a sub-stitute for or a continuation of the right to support that the spouse had during marriage. Ellsworth v. Ellsworth, 1981-NMSC-132, ¶ 1, 97 N.M. 133, 637 P.2d 564. In determining whether to order spousal support, the district court is to consider: (1) the needs of the proposed recipient, (2) the proposed recipient’s age, health, and means of self-support; (3) the proposed payor’s earning capac-ity and future earnings; (4) the duration of the marriage; and (5) the amount of property owned by the parties. See Mi-chelson v. Michelson, 1974-NMSC-022, ¶ 8, 86 N.M. 107, 520 P.2d 263. The actual need of the proposed recipient is a focal consideration in determining whether to order spousal support. Mattox v. Mattox, 1987-NMCA-021, ¶ 29, 105 N.M. 479, 734 P.2d 259.8 The district court has wide discretion to award spousal support, and its deci-sion will only be set aside if it constitutes an abuse of discretion. See Martinez v. Martinez, 1997-NMCA-125, ¶ 10, 124 N.M. 313, 950 P.2d 286; Ellsworth, 1981-NMSC-132, ¶ 2. “An abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions demanded by the facts and circumstances of the case.” Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153. Further, to establish an abuse of discretion, “it must be shown that the court’s ruling exceeds the bounds of all reason or that the judi-cial action taken is arbitrary, fanciful, or unreasonable.” Meiboom v. Watson, 2000-NMSC-004, ¶ 29, 128 N.M. 536, 994 P.2d 1154 (alteration, internal quotation marks, and citation omitted). “When there exist reasons both supporting and detracting from a [district] court decision, there is no abuse of discretion.” Talley v. Talley, 1993-NMCA-003, ¶ 12, 115 N.M. 89, 847 P.2d 323. “Where the court’s discretion is fact-based, we must look at the facts relied on by the [district] court as a basis for the exercise of its discretion, to determine if these facts are supported by substantial evidence.” Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 60, 134 N.M. 77, 73 P.3d 215 (internal quotation marks and citation omitted).

B. Amount9 Wife contends that the district court abused its discretion in calculating the amount of spousal support. The issue before this Court is whether the district court should have considered the non-W-2 income distributions from IPR when it calculated Husband’s current earnings for spousal support purposes. Wife asserts that it was an abuse of discretion for the district court to base its spousal support calculation only on a portion of Husband’s W-2 wage income and not on the total amount of his income from IPR because NMSA 1978, Section 40-4-7(E)(2) (1997) requires the non-W-2 income distribu-tions to be included in this calculation. Under the particular facts of this case, we agree with Wife on this issue.10 As an owner of IPR, Husband is required to include in the parties’ personal tax return the portion of IPR’s income as set forth in the K-1 allocations to Hus-band. See Ashmore v. C.I.R., T.C. Memo 2013-137 (recognizing that even where a taxpayer did not receive a tax document such as a form W-2 or schedule K-1, the taxpayer is not excused from his or her duty to report the income on a federal income tax return). Allocations of corpo-rate income are not the same as distribu-tions of corporate income. The non-W-2 income that is actually distributed by IPR is available to be consumed by the parties and can also be used to pay the increased tax obligations incurred as a result of the K-1 allocations issued to Husband by IPR. Important to this analysis, the non-W-2 income distributions from IPR that exceed the amount necessary to pay corporate business expenses or the shareholder-spouse’s tax obligations are considered income for purposes of calculating family support obligations. See, e.g., NMSA 1978, § 40-4-11.1(C)(2)(b) (2008) (defining, for purposes of child support, a self-employed parent’s gross income as gross receipts minus ordinary and necessary expenses required to produce such income); see In re Marriage of Schenkelberg, 824 N.W.2d 481, 484-85 (Iowa 2012) (requiring the inclusion of husband’s distributions from his Subchapter-S corporation that are not used for business or to pay tax liabilities).11 Only income that has been retained by a corporation for corporate purposes or distributed to a shareholder-spouse in an amount sufficient to pay business-related expenses or tax obligations would be deemed unavailable for use by a shareholder-spouse to satisfy the financial

obligations imposed by a dissolution of marriage. See NMSA 1978, § 7-4-2(A) (1999) (defining “business income” as “income arising from transactions and ac-tivity in the regular course of the taxpayer’s trade or business and income from the disposition or liquidation of a business or segment of a business”); Roberts v. Wright, 1994-NMCA-022, ¶ 9, 117 N.M. 294, 871 P.2d 390 (refusing to include a parent’s corporate earnings, over the amount actu-ally received in payment, in child support calculations); Brett R. Turner, Classifying the Retained Earnings of a Separate Prop-erty Business as Marital Property, 15 No. 8 Divorce Litig. 141 (2003) (“[T]he owner of a business should not be required to place protection of the marital estate above all other legitimate business concerns.”). As such, simply attributing K-1 allocations to a shareholder-spouse for tax purposes does not provide a workable framework for the district courts to assess either the needs of the shareholder-spouse or the spouse’s ability to pay support. Caveney v. Caveney, 960 N.E.2d 331, 342 (Mass. App. Ct. 2012) (noting that “there was no evidence to sug-gest that the actual amount of distributions made to the wife from the [S]ubchapter[-]S corporations bore any resemblance to the amount of the K-1 income reported by the wife for income tax purposes”); see also § 40-4-7(B)(1) (allowing the district court to award spousal support as may “seem just and proper” under the circumstances of the case); Lovato v. Lovato, 1982-NMSC-052, ¶ 8, 98 N.M. 11, 644 P.2d 525 (“It is the duty of the [district] court to make a decision based upon all the facts and upon all the considerations that will result in fairness to both parties involved in an alimony and support situation.”).12 Actual cash distributions of cor-porate funds to a shareholder-spouse are the critical factor in calculating support, especially large non-W-2 income distribu-tions that are received by the shareholder-spouse, deposited in the community bank account, and used to pay community living expenses and other needs. See § 7-4-2(E) (defining “nonbusiness income” as “all income other than business income”); cf. Boutz v. Donaldson, 1999-NMCA-131, ¶ 14, 128 N.M. 232, 991 P.2d 517 (“The definition of gross income in the child support guidelines represents a legislative effort to estimate ‘actual cash flow,’ that is the amount of money that will actually be available to support the children.”). We conclude that Subchapter-S corpo-ration funds actually distributed to the



http://www.nmcompcomm.us/Advance Opinionsshareholder-spouse must be attributed to the shareholder-spouse as income for spousal support purposes unless and until the shareholder-spouse can demonstrate what portion of the corporate distribu-tion was used for business purposes or to offset the payment of income taxes resulting from any K-1 allocations. See, e.g., Roberts, 1994-NMCA-022, ¶ 8 (“The parent claiming a business expense must show not only that it is ordinary and necessary to the business, but also that it is irrelevant to calculating support obliga-tions.”); see also Schenkelberg, 824 N.W.2d at 484-85 (recognizing that it was logical to conclude that husband received more than just wages from the Subchapter-S corporation, his sole source of income, because he had sufficient additional in-come to pay his taxes and maintain his lifestyle without incurring any resulting debt); cf. Champion Int’l Corp. v. Bureau of Revenue, 1975-NMCA-106, ¶ 9, 88 N.M. 411, 540 P.2d 1300 (placing burden on the taxpayer to present evidence on the question of whether any of its income was nonbusiness income for purposes of disputing an assessment of taxes made by the bureau). With the burden resting on the shareholder-spouse, the district court must then carefully consider the particular facts of each case, especially where a shareholder-spouse does not clearly establish what portion of non-W-2 income actually distributed was necessary to offset any related business expenses or tax obligations resulting from the K-1 al-locations received by the corporation. See Ellsworth, 1981-NMSC-132, ¶ 4 (explain-ing that spousal support is “based on need, ability to self-support, and the equities of the particular situation”); see also Fennell v. Fennell, 2000 PA Super 166, ¶ 10, 753 A.2d 866 (“[T]he owner of a closely-held corpo-ration cannot avoid a support obligation by sheltering income that should be avail-able for support by manipulating salary, perquisites, corporate expenditures, and/or corporate distribution amounts. By the same token, however, we cannot attribute as income funds not actually available to or received by the party.”).13 This Court generally understands and recognizes that the calculation of a tax liability is not an exact mathematical sci-ence, but it can normally be accomplished within a reasonable margin of error. Mat-tox, 1987-NMCA-021, ¶ 23 (explaining that the district court should generally consider tax consequences when deciding a property settlement upon dissolution of

marriage, but reasoning that “mathemati-cal exactitude in the division of property is not required”). It is for the district court to address any unresolved disagreements that might result in the calculation of a tax li-ability when reviewing the evidence. Frus-tration and difficulty cannot be recognized as the proper basis for failing to calculate the shareholder-spouse’s actual income received from a corporate entity, especially where the Subchapter-S corporation is the primary source of income to the parties. See Entzie v. Entzie, 2010 ND 194, ¶ 9, 789 N.W.2d 550 (noting that the district court must apply the proper guidelines to calculate current income even where an accurate depiction of income is difficult); Pacella v. Pacella, 492 A.2d 707, 713 (Pa. Super. Ct. 1985) (recognizing that earn-ing capacity rather than salary was more appropriate to calculate spousal support where the husband had manipulated his corporation and “so commingled corpo-rate and personal funds as to render efforts to separate the two extremely difficult”).14 Where corporate funds are actually received and used by the parties for their standard of living, any presumptions im-posed to address financial questions to be resolved by the district court should not favor the shareholder-spouse. See Roberts, 1994-NMCA-022, ¶ 11 (“[I]f there is a disagreement about the appropriateness of the deduction, then the deduction must be justified by the party claiming the expense.”); see also Jurado v. Jurado, 1995-NMCA-014, ¶ 28, 119 N.M. 522, 892 P.2d 969 (recognizing that it would be “unjust” to calculate child support using gross income attributable to husband’s partner-ship if some of the income needed to be reinvested to sustain the business but re-quiring husband to show what is necessary to sustain his partnership). In addition, recognizing any form of bright-line rule that would effectively include or exclude Subchapter-S corporation distributions from a spousal support calculation would not be proper. See Zold v. Zold, 911 So. 2d 1222, 1231 (Fla. 2005) (“[A]n inflexible rule treating undistributed ‘pass-through’ income of a shareholder-spouse as available income in marital dissolution proceedings is contrary to corporate governance[.]”); In re Marriage of Brand, 44 P.3d 321, 328 (Kan. 2002) (“Courts have been reluctant, for policy reasons, to allow a blanket rule that retained earnings of a Subchapter[-]S corporation are not income to be consid-ered when calculating support. Allowing support to be calculated in this way would

encourage shareholders to retain earnings in favor of their own long-term financial interests without regard for the need for support.”). The district court must be careful to avoid allowing the shareholder-spouse to manipulate salary, corporate distributions, and retained earning to his or her unfair advantage, thereby substan-tially skewing one’s support obligations. See Jurado, 1995-NMCA-014, ¶ 26 (noting the potential for husband to manipulate his income in a way that would decrease child support payments by $98,411 annually); Smith v. Smith, 1992-NMCA-080, ¶ 22, 114 N.M. 276, 837 P.2d 869 (affirming the dis-trict court’s imposition of a community lien against a husband’s separate business where substantial evidence supported a finding that the business under-compensated the community during the course of the mar-riage); Williams v. Williams, 600 N.E.2d 739, 743 (Ohio Ct. App. 1991) (“[I]t would be grossly inequitable to allow appellee to sit upon his assets, hide behind the shield of corporate business decisions, and prevent his children from enjoying the standard of living they would have enjoyed had the marriage continued.”). The potential for manipulation is also much greater where the shareholder-spouse is a sole or major-ity shareholder of the corporation and, by virtue of his ownership and control, has authority to dictate all corporate distribu-tions. Zold, 911 So. 2d at 1232; In re Mar-riage of Brand, 44 P.3d at 327 (stating that a minority shareholder has less ability to control the amount of corporate income retained); Fennell, 753 A.2d at 869 (requir-ing “[a shareholder-spouse who] is able to control the retention or disbursement of [corporation] funds . . . to [prove] that such actions were ‘necessary to maintain or preserve’ the business”).15 We must apply these principles to the district court’s rulings in the present case. It is uncontested that Husband re-ceived significant W-2 income as well as non-W-2 income distributions from IPR every year from 2008 to 2010. However, the district court wholly disregarded the non-W-2 income distributions when it calculated Husband’s current earnings for purposes of spousal support, explaining that it was impossible to tell how much income Husband actually received from these non-W-2 income distributions. This finding is neither sufficiently developed nor explained by the district court. It fails to identify the difficulty in effectuating a proper calculation of Husband’s actual income from IPR and does not explain



http://www.nmcompcomm.us/Advance Opinionswhy the resulting resolution of this is-sue presumptively favored Husband, the shareholder-spouse. Because the district court did not provide sufficient informa-tion to explain its exclusion of Husband’s non-W-2 income distributions in the cal-culation of his income for spousal support purpose and because it did not explain why the difficulties in making these calcula-tions should not be held against Husband as the shareholder-spouse, this Court is not capable of adequately reviewing these rulings.16 Basic logic also presents questions regarding the district court’s decision to exclude Husband’s non-W-2 income from the calculation of spousal support. Al-though the K-1 allocations did not match the non-W-2 income distributions made to Husband, it is clear that the distribu-tions exceeded the allocation in 2009 by nearly $190,000. It does not take a Rule 11-706 expert or any special knowledge for this Court to recognize that Husband did not need a $362,877 non-W-2 income distribution of cash from IPR to pay his resulting increase in income taxes that are attributed to a $175,762 K-1 allocation. See Rozelle v. Barnard, 1963-NMSC-101, ¶ 2, 72 N.M. 182, 382 P.2d 180 (“[C]ourts will take judicial notice of matters of common and general knowledge.”). To do so would require the court to recognize that the parties were in an income tax bracket that exceeded two hundred percent in 2009. The reality of such a financial scenario defies common sense.17 Without an explanation to support its rulings, we hold that it was an abuse of discretion for the district court to ex-clude all of Husband’s non-W-2 income received from IPR when calculating spousal support and to shift the burden of proof to Wife, requiring her to show what portion, if any, of Husband’s non-W-2 income should be included in the calculation of spousal support. Gener-ally, the burden should have remained on Husband to prove what portion of the non-W-2 income distributions were used to offset the additional taxes resulting from the K-1 allocations. See Zold, 911 So. 2d at 1233 (“The burden is properly on the shareholder-spouse because he or she has the ability to obtain information to establish the propriety of the corporation’s actions.”); see also, Champion Int’l Corp., 1975-NMCA-106, ¶ 9 (requiring the disputing taxpayer to prove which income constituted non-business income).

18 Husband argues that we should ad-dress the issue on the basis of IPR’s separate property status. We are not persuaded by Husband’s argument. Alimony is based on the standard of living and needs of the respective spouses. See Ellsworth, 1981-NMSC-132, ¶ 4 (“Problems have arisen where the concepts of alimony and prop-erty division are mixed.”). It is calculated based on the needs of each party after property distribution. See Michelson, 1974-NMSC-022, ¶ 9 (“Certainly an important factor in determining an award of alimony is the amount of property distributed to the wife as her share of the community interest. Upon its distribution it becomes her sole and separate property. What will her needs be after that distribution?”). Thus, there is no continuation of the com-munity estate at the time the district court calculates alimony and it must base its cal-culations of need on the sole and separate assets belonging to each party at that time. Id.; see Brister v. Brister, 1979-NMSC-038, ¶ 17, 92 N.M. 711, 594 P.2d 1167 (“The focal point in each [alimony] case is the recipient’s need for support.”). Husband’s argument that his separate property should not be considered when calculating alimony payments improperly merges the concepts of alimony and property division. As a result, we remand this matter to the district court for a factually definitive and legally reviewable calculation of Husband’s IPR income. Upon recalculation, Hus-band’s support obligation to Wife should then be adjusted as necessary.C. Duration19 We now address Wife’s contention that it was error for the district court to limit the duration of spousal support to eighteen months without evidence addressing the future circumstances of the parties. As Wife points out, Section 40-4-7(E)(2) calls for spousal support to be based upon factors including the “cur-rent and future earnings and the earning capacity of the respective spouses.” “The appropriateness of an order for limited-duration rehabilitative support depends on the circumstances of the particular case.” Rabie v. Ogaki, 1993-NMCA-096, ¶ 61, 116 N.M. 143, 860 P.2d 785.20 “[A district] court should not termi-nate jurisdiction to extend a future support order after a lengthy marriage, unless the record clearly indicates that the supported spouse will be able to adequately meet his or her financial needs at the time selected for termination of jurisdiction.” Id. ¶ 10 (alteration, internal quotation marks, and

citation omitted). As a result, rehabilitation awards that provide spousal support for a limited duration have generally involved younger recipients with substantial job skills and relatively short marriages. See Lewis v. Lewis, 1987-NMCA-073, ¶ 50, 106 N.M. 105, 739 P.2d 974. When a dis-trict court finds that a spouse is currently entitled to periodic spousal support but may later become self-sufficient, “the proper course is to order such support for an indefinite time, with the payor spouse bearing the burden to move for reduc-tion or elimination of support when it appears that the recipient spouse has in fact become more self-sufficient.” Rabie, 1993-NMCA-096, ¶ 10.21 The district court must make suf-ficient findings concerning Wife’s ability to support herself in the future so that this Court is able to determine the basis for the termination of alimony after eighteen months. At the time of the divorce, Wife was a sixty-year-old homemaker with no known prospects for any future earning capacity. Wife testified about Husband’s request that she not work outside the home during the marriage. Thus, Wife lost her only marital source of income, previ-ously derived from her position as a board member for IPR. If she were to remain unemployed, as anticipated by the record in this case, Wife will have no future earn-ings other than her social security benefits. Wife was, therefore, “economically disad-vantaged by the marriage.” Bilbao v. Bilbao, 1985-NMCA-016, ¶ 9, 102 N.M. 406, 696 P.2d 494.22 Husband, on the other hand, has the ability to pay spousal support, especially during any future years that he continues to work. We recognize that Husband is in declining health and planning to retire. But as long as Husband has an interest in IPR, there is no reason to conclude that he will not continue to receive a substantial financial benefit, including distributions from the corporation as its sole owner, regardless of whether he continues to manually work at the project sites. More-over, if Husband divests himself of his ownership in IPR, he will receive payment for his ownership interest that will provide him with substantial income that he can subsequently reinvest in other income pro-ducing assets or use for his benefit. Under these circumstances, we agree that Wife should not be under an absolute obliga-tion to obtain employment after eighteen months in order to meet her financial needs. See Lewis, 1987-NMCA-073, ¶¶



http://www.nmcompcomm.us/Advance Opinions51-52 (remanding because of insufficient findings after this Court held that a sixty-two-year-old wife who had been married to her husband for nearly forty years, whose marital role was primarily that of a homemaker, and whose spouse is well able to afford alimony, has no obligation to “rehabilitate” herself).23 The district court reasonably recog-nized that “[b]oth parties are of retirement age and need to transition to retirement.” However, automatic termination of Wife’s spousal support after eighteen months could only be justified in this case if, after eighteen months, Wife’s income was suf-ficient to establish that spousal support would no longer be necessary to help support her reasonable needs. The district court made no findings to that effect, and the facts do not support such a finding or such an inference. Specifically, the court made no findings regarding Wife’s future employability or potential income. Based upon the lack of any evidence or findings on this issue, we remand this issue for further consideration by the district court regarding the duration of the spousal support to Wife. While we do not reverse the district court’s imposition of a $6,500 per month standard of living for Wife, this level was originally set as a rehabilitative amount without considering all the IPR income received by Husband and based upon a presumption that both parties would be making a transition to retirement. See Lewis, 1987-NMCA-073, ¶ 52. The district court must reconsider the overall income and expense level of both parties and make a new decision that is fair and equitable to each of them. See id.; see also Lovato, 1982-NMSC-052, ¶ 8. We conclude that spousal support was payable to Wife for the original eighteen-month interim period but must now be con-tinued and re-evaluated based upon her current financial needs. See Rabie,1993-NMCA-096, ¶ 10. As a result, the district court also abused its discretion when it strictly limited the duration of spousal support to eighteen months.Husband’s Separate Property Income24 We now address Wife’s allegation that the district court erred in charac-terizing a portion of Husband’s income from IPR as his separate property. We

review the district court’s equitable dis-tribution of assets and liabilities for an abuse of discretion. Arnold v. Arnold, 2003-NMCA-114, ¶ 6, 134 N.M. 381, 77 P.3d 285. The district court here found that IPR was Husband’s separate property and that Husband earned both a monthly community property salary of $8,333 per month and a separate income based on his ownership interest in IPR. Thus, the issue raised by Wife on appeal involves only an evidentiary challenge to the district court’s rulings, and we shall apply a substantial evidence standard of review. See Bishop v. Evangelical Good Samaritan Soc’y, 2009-NMSC-036, ¶ 25, 146 N.M. 473, 212 P.3d 361 (applying a substantial evidence stan-dard where no legal questions remain); see also Corley v. Corley, 1979-NMSC-040, ¶ 6, 92 N.M. 716, 594 P.2d 1172; Zemke v. Zemke, 1993-NMCA-067, ¶ 14, 116 N.M. 114, 860 P.2d 756. “Substantial evidence is such relevant evidence that a reasonable mind would find adequate to support a conclusion.” Landavazo v. Sanchez, 1990-NMSC-114, ¶ 7, 111 N.M. 137, 802 P.2d 1283.25 On appeal, it was Wife’s duty to present the evidence in the light most favorable to support the district court’s findings, and then demonstrate why the evidence failed to support these findings. Jurado, 1995-NMCA-014, ¶ 9. Wife has not provided any citation to the record or other arguments to rebut the district court’s con-clusions that Husband’s ownership interest in IPR was his separate property and that a portion of his salary resulted from this separate ownership interest. In addition, Wife has not provided this Court with any other evidence or arguments as to why it was error for the district court to accept Mr. Johnson’s testimony regarding the correct salary for a non-owner employee doing the same work as Husband. See Rule 12-213(A)(4) NMRA; see also Aspen Land-scaping, Inc. v. Longford Homes of N.M., Inc., 2004-NMCA-063, ¶ 28, 135 N.M. 607, 92 P.3d 53 (explaining that a party challenging a finding for lack of substantial evidence must refer to “all of the evidence, both favorable and unfavorable, followed by an explanation of why the unfavorable evidence does not amount to substantial evidence, such as is necessary to inform

both the appellee and the Court of the true nature of the appellant’s arguments”).26 On appeal, Wife merely asserts that her version of this factual position was correct and that the district court should have adopted it. See Lahr v. Lahr, 1970-NMSC-165, ¶ 2, 82 N.M. 223, 478 P.2d 551 (“We presume the correctness of the judg-ment of the [district] court who had the advantage of evaluating the demeanor of the parties and of the witnesses.”). In such a situation, it is well established that the district court was free to accept Husband’s evidence and reject Wife’s evidence. Jay Walton Enters., Inc. v. Rio Grande Oil Co., 1987-NMCA-070, ¶ 26, 106 N.M. 55, 738 P.2d 927 (“Where evidence is conflicting and the court adopts findings on a disput-ed issue, the fact that there may have been other evidence upon which the court could have adopted a different finding does not constitute error.”). “[W]e will not reweigh the evidence nor substitute our judgment for that of the fact finder.” Las Cruces Prof ’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. On appeal, Wife has failed to meet her burden in this regard. As a result, we conclude that substantial evidence sup-ported the district court’s determination that Husband’s ownership interest in IPR was his sole and separate property and that his reasonable salary for the field work performed for IPR was $8,333 per month. Salary paid in excess of $8,333 per month must also be treated as separate property distributions to Husband even though they were originally reported as W-2 income. Both sources of Husband’s income are ap-propriately included in the determination of spousal support.CONCLUSION27 For the foregoing reasons, the dis-trict court’s findings and determinations of spousal support to Wife are reversed in part and affirmed in part. We remand this matter to the district court for further proceedings consistent with this Opinion.28 IT IS SO ORDERED. TIMOTHY L. GARCIA, Judge

WE CONCUR:CYNTHIA A. FRY, JudgeJ. MILES HANISEE, Judge




Certiorari Denied, March 7, 2014, No. 34,451


Opinion Number: 2014-NMCA-031

Topic Index:Appeal and Error: Interlocutory Appeal

Civil Procedure: Failure to State a Claim; and Stare DecisisInsurance: Motor Vehicle Insurance;

and Uninsured or Underinsured motoristStatutes: Rules of Construction

LONNIE CURRY, and MILDRED CURRY, for themselves and all other similarly situated,

Plaintiffs-Appellees,v.

GREAT NORTHWEST INSURANCE COMPANY, a foreign Corporation, J. S. WARD & SON, INC. A New Mexico Corporation, DEAN CHAVEZ,

JOHN DOE ADJUSTERS and AGENTS of GREAT NORTHWEST INSURANCE COMPANY and J. S. WARD & SON, INC.,

Defendants-AppellantsDocket No. 31,990 (filed November 20, 2013)

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTYJOHN W. POPE, District Judge

GORDON H. ROWE, IIITHE ROWE LAW FIRM, P.C.

Albuquerque, New Mexicofor Appellees

JOE L. MCCLAUGHERTYMCCLAUGHERTY & SILVER, P.C.

Santa Fe, New Mexicofor Appellants

Opinion

M. Monica Zamora, Judge1 This case presents us with the limited question of whether our Supreme Court’s decision in Jordan v. Allstate Insurance Co., 2010-NMSC-051, 149 N.M. 162, 245 P.3d 1214, requires that uninsured and under-insured motorist (UM/UIM) coverage op-tions and corresponding premiums appear on the written UM/UIM coverage rejection form itself. Unpersuaded that Jordan creates such a specific requirement, we conclude that Plaintiffs’ complaint is based upon an incorrect reading of Jordan, thereby failing to state a claim upon which relief could be granted. We reverse the district court’s deci-sion denying Defendants’ motion to dismiss as to that issue and remand for proceedings consistent with this Opinion.

I. BACKGROUND2 We take the relevant facts from the allegations of the complaint filed by Lon-nie Curry and Mildred Curry (Plaintiffs) for themselves and on behalf of others similarly situated. We accept these facts as true for purposes of reviewing a mo-tion to dismiss. Padilla v. Wall Colmonoy Corp., 2006-NMCA-137, ¶ 2, 140 N.M. 630, 145 P.3d 110. A motion to dismiss tests the legal sufficiency of the complaint, not the facts that support it. See Rule 1-012(B)(6) NMRA; Three Rivers Land Co. v. Maddoux, 1982-NMSC-111, ¶ 13, 98 N.M. 690, 652 P.2d 240, overruled on other grounds by Universal Life Church v. Coxon, 1986-NMSC-086, 105 N.M. 57, 728 P.2d 467.3 In September 2009, Plaintiffs were involved in a serious motor vehicle ac-cident. Plaintiffs’ vehicle was covered by

a standard insurance policy with Great Northwest Insurance Company (Defen-dant)1, which provided liability coverage for their vehicle. Because coverage from the underlying liability carriers was in-sufficient to compensate for all of their injuries, Plaintiffs filed an underinsured motorist claim with Defendant. Defendant denied Plaintiffs’ underinsured motorist claim based on a written rejection of UM/UIM coverage Plaintiffs signed when they purchased their policy.4 Plaintiffs filed suit alleging that the UM/UIM coverage rejection form Defendant relied upon in denying their uninsured motorist claim was invalid under Jordan because it did not contain a list of premium charges corresponding to the available UM/UIM coverage options. Plaintiffs also asserted that because the UM/UIM coverage rejection form was invalid, their policy should be reformed as a matter of law by providing UM/UIM coverage equal to their limits of liability.5 In response to Plaintiffs’ suit, Defen-dants moved for dismissal claiming that Plaintiffs misconstrued Jordan and as a re-sult failed to state a claim upon which relief could be granted. Defendants argued that Jordan requires insurers to provide UM/UIM coverage options and corresponding premium information, but that it does not require that the information also appear directly on the written rejection of UM/UIM coverage.6 The claims in Plaintiffs’ complaint are limited to the rejection form. Aside from the rejection form issue, none of the parties raised an issue of whether the UM/UIM coverage and corresponding premiums were provided in writing when the insur-ance policy was being considered. There-fore, we limit our decision to the issue of whether New Mexico law requires that an insurer provide available UM/UIM cover-age options and corresponding premium information on the written rejection form delivered with the insurance policy to the insured.7 After hearing the parties’ arguments, the district court denied Defendants’ motion to dismiss. In its order, the court found that although Jordan did not directly address the issue of whether a valid waiver or rejection of UM/UIM coverage requires that the insured be provided a written list of coverage options and corresponding

1 All named Defendants filed the motion to dismiss. The specific issue before this Court is limited to the insurance policy and rejection form issued by the Defendant Great Northwest Insurance Company. Any reference to the singular Defendant shall be to Defendant Great Northwest Insurance Company and any reference to the plural Defendants shall be to all named Defendants.



http://www.nmcompcomm.us/Advance Opinionspremium charges on the rejection form itself, an argument could be made that Jor-dan created such a requirement. The court therefore certified this specific question for interlocutory appeal. This Court granted the request for an interlocutory appeal pursuant to NMSA 1978, Section 39-3-4 (1999) and Rule 12-203(A) NMRA.2

8 Although we are not confined to the particular questions the district court certi-fied for this interlocutory appeal, the scope of our review must be limited to the issues fairly contained in the order. Pena Blanca P’ship v. San Jose de Hernandez Cmty. Ditch, 2009-NMCA-016, ¶ 7, 145 N.M. 555, 202 P.3d 814. This Court has declined to decide issues that were not the basis of the order actually appealed from. See Bell v. Estate of Bell, 2008-NMCA-045, ¶ 9, 143 N.M. 716, 181 P.3d 708 (declining to address an issue that was neither the basis of the district court’s order nor specifically certified for interlocutory appeal); see also Ellis v. Cigna Prop. & Cas. Cos., 2007-NMCA-123, ¶ 14, 142 N.M. 497, 167 P.3d 945 (concluding that the issues raised by appellant were not certified for interlocutory appeal by the district court); cf. Armijo v. Wal-Mart Stores, Inc., 2007-NMCA-120, ¶ 19, 142 N.M. 557, 168 P.3d 129 (stating an appellate court can decide issues other than those certified, where a party raises issues which were not stated in the questions certified, but were not wholly unrelated to the issues identified by the lower court in its order). The argument before the district court by both parties, the district court’s order, and the question before this Court is limited to the question of whether a valid waiver or rejection of UM/UIM coverage requires that the insured be provided a written list of coverage options and corresponding premium charges on the rejection form itself. II. DISCUSSIONA. Standard of Review9 The decision of the district court to deny Defendants’ Rule 1-012(B)(6) motion is a question of law that we review de novo. Valles v. Silverman, 2004-NMCA-019, ¶ 6, 135 N.M. 91, 84 P.3d 1056. De novo review requires appellate courts “to make an in-dependent assessment of the record.” Aken v. Plains Elec. Generation & Transmission Coop., Inc., 2002-NMSC-021, ¶ 19, 132 N.M. 401, 49 P.3d 662.

B. UM/UIM Rejections in New Mexico

10 NMSA 1978, Section 66-5-301 (1983) and its implementing regula-tion, now codified as 13.12.3.9 NMAC (5/14/2004), govern UM/UIM insurance coverage in New Mexico. Jordan, 2010-NMSC-051, ¶¶ 16-18. The New Mexico Supreme Court construes the statute liberally, and the default rule is to provide the maximum possible amount of UM/UIM coverage. Id. ¶15. Any exception to that rule is strictly construed to protect the insured. Id. Section 66-5-301 embodies a public policy of New Mexico that UM/UIM coverage be provided with every au-tomobile liability insurance policy issued in this state. Romero v. Dairyland Ins. Co., 1990-NMSC-111, ¶ 6, 111 N.M. 154, 803 P.2d 243. For that reason, “the insurer may not exclude UM/UIM coverage from an automobile liability policy unless it has of-fered it to the insured, and the insured has exercised the right to reject the coverage through some positive act.” Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 15, 147 N.M. 678, 228 P.3d 462 (citation omitted).11 Section 66-5-301 provides insureds the right to reject UM/UIM coverage. It does not specify the form or manner that an effective rejection must take. Romero, 1990-NMSC-111, ¶ 4. The form and man-ner of effective UM/UIM coverage rejec-tions are established by rules and regula-tions promulgated by the superintendent of insurance. Kaiser v. DeCarrera, 1996-NMSC-050, ¶ 8, 122 N.M. 221, 923 P.2d 588. Regulation 13.12.3.9 NMAC requires rejections of UM/UIM coverage to be writ-ten and included in the policy delivered to the insured. Marckstadt, 2010-NMSC-001, ¶ 17. This “furthers [the] legislative purpose to provide for the inclusion of uninsured motorist coverage in every au-tomobile liability policy unless the insured has knowingly and intelligently waived such coverage.” Romero,1990-NMSC-111, ¶ 9. Any insured rejecting UM/UIM coverage should be well informed as to that decision. Id. The rejection, as part of the delivered policy, provides affirmative evidence of the extent of coverage. Id. This affirmative evidence “comports with [the] policy that any rejection of the coverage be knowingly and intelligently made.” Id.

C. Jordan Does Not Require UM/UIM Coverage Options and Corresponding Premium Charges to Be Provided on the Written Rejection Form Itself

12 In Jordan, the New Mexico Supreme Court recognized that insurers were offer-ing UM/UIM coverage in ways that did not allow insureds to make realistically informed choices. 2010-NMSC-051, ¶ 20. After examining Section 66-5-301, the cor-responding regulation 13.12.3.9 NMAC, and related case law, the Court endeavored to set forth workable requirements for valid, meaningful rejections of UM/UIM coverage. Jordan, 2010-NMSC-051, ¶¶ 20-21. The Jordan Court determined that UM/UIM coverage equal to the liability limits would be the default coverage unless the insurer:

(1) offer[s] the insured UM/UIM coverage equal to his or her li-ability limits, (2) inform[s] the insured about premium costs corresponding to the available levels of coverage, (3) obtain[s] a written rejection of UM/UIM coverage equal to the liability limits, and (4) incorporate[s] that rejection into the policy [deliv-ered to the insured] in a way that affords the insured a fair oppor-tunity to reconsider the decision to reject[.]

Id. ¶¶ 22, 30.13 Plaintiffs argue that when read together, the requirement that insurers provide coverage and premium informa-tion and the requirement that rejections be in writing, create an implicit requirement that the coverage and premium informa-tion be provided on the written rejection form itself. We disagree.14 In Jordan, the Court explained to effectuate New Mexico’s public policy of protecting insureds, an insured’s deci-sion to reject UM/UIM coverage must be knowing and intelligent. Id. ¶ 20. To ensure that rejections are knowingly and intelligently made, insurers must offer UM/UIM coverage in a meaningful way and obtain any rejections of the statuto-rily authorized coverage in writing. Id. ¶ 18. Offering UM/UIM coverage in a meaningful way includes providing the insured with a menu of coverage options

2 Aside from the question certified for interlocutory appeal, Defendants’ motion to dismiss also claimed that (1) the court lacked personal jurisdiction over Dean Chavez, (the adjuster who denied Plaintiffs’ claim and who was named in the complaint individually), and (2) Plaintiffs failed to identify an ascertainable class. Therefore, the district court’s order denying the motion to dismiss was not solely based on the question before this Court in this appeal.



http://www.nmcompcomm.us/Advance Opinionsand corresponding premium costs. Id. ¶ 21. Providing this information and obtaining written rejections enables the insured to make an informed decision about the level of UM/UIM coverage he or she wants to purchase and minimizes uncertainty (and litigation) with regard to the coverage that the insured has obtained. Id.; see also Romero, 1990-NMSC-111, ¶ 9 (including an insured’s rejection with their delivered policy ensures that the insured has affirmative evidence of the extent of their coverage).15 The Jordan Court’s discussion is articulated in terms of information made available to the prospective insured prior to purchasing liability and UM/UIM cov-erage. In setting out the workable require-ments for valid, meaningful rejections of UM/UIM coverage, Jordan used the term “provide” when discussing coverage and premium information. Jordan, 2010-NMSC-051, ¶ 21. The Jordan Court also noted that by providing a menu of cover-age options and corresponding premiums, insureds can make an informed decision on the type of UM/UIM coverage they would like to purchase. Id. 16 The cases leading up to Jordan also address the requisite UM/UIM informa-tion issue within the context of purchas-ing an insurance policy. See Romero, 1990-NMSC-111, ¶ 4 (finding that the rejection form specified that the insured’s policy would not contain coverage when issued and said rejection form was not at-tached to the liability policy that was later issued); Marckstadt, 2010-NMSC-001, ¶ 4 (holding that an insurer must get a written rejection of UM/UIM coverage before it can exclude it from the insurance policy); Progressive Nw. Ins. Co. v. Weed Warrior Servs., 2010-NMSC-050, ¶ 1, 149 N.M. 157, 245 P.3d 1209 (holding that an elec-tion by an insured to purchase UM/UIM coverage in an amount less than the policy liability limits constitutes a rejection of maximum amount of UM/UIM coverage). Additionally, Section 66-5-301 presents in terms of issuing an insurance policy and 13.12.3.9 NMAC, which references the statute, requires that the rejection of UM/UIM coverage be made a part of the issued insurance policy.17 When discussing the rejection forms, the Jordan Court used the word “written.” 2010-NMSC-051, ¶ 22. Indeed, the Court’s entire discussion of UM/UIM rejection forms centered around the im-portance of obtaining UM/UIM rejections in writing. Id. ¶¶ 16-19. In contrast, the

Court’s discussion of providing coverage and premium information focused primarily on the need to provide insureds with enough information to make an in-formed decision regarding UM/UIM cov-erage in contemplation of purchasing their insurance policy. Id. ¶¶ 20-21. The Court did not address every method insurers may use to provide this information or the validity of those methods. We conclude that Jordan does not require UM/UIM coverage options and corresponding premium information to appear on the written UM/UIM rejection form included with an insured’s policy.18 Jordan decided three consolidated cases: Jordan v. Allstate, Romero v. Progres-sive Northwestern Insurance Co., and Luce-ro v. Trujillo. Jordan, 2010-NMSC-051, ¶ 3. Our Supreme Court decided to consolidate the three cases and resolve them with a single opinion in order to provide guid-ance on the requirements for valid offers and rejections of UM/UIM coverage. Id. ¶ 13. After the Court prescribed the four requirements, it discussed the application of those requirements to each of the three cases.1. Jordan v. Allstate19 Plaintiffs argue that the facts in Jor-dan are virtually identical to the facts in the case before us. We disagree. It is necessary to point out in Jordan, the insured was provided with a combination UM/UIM selection/rejection form. While the Jordan Court did not address this particular type of form, it did find that the selection/re-jection form included a menu of coverage options from the statutory minimum up to policy liability limits. Id. ¶ 31. However, the Court held that the rejections were insufficient, both because the insurer did not provide the premium costs for each coverage option on this selection/rejection form, and because the rejections were not part of the policies delivered to the in-sureds. Id. ¶ 32. Plaintiffs argue this hold-ing demonstrates the Court’s intention that written UM/UIM rejection forms include UM/UIM coverage options and premium costs.20 We disagree for two reasons. First, in Jordan, the rejections were insufficient as a matter of law because the rejections were not made part of the policies delivered to the insureds. The insurer did not disagree that the forms were not attached to the policies, but instead argued that the signed forms showed that the insureds know-ingly and intelligently elected to purchase the minimum UM/UIM coverage limits.

This argument completely ignored the requirements of 13.12.3.9 NMAC. While the declaration pages sent to the insureds listed the amounts of liability and UM/UIM coverages provided by the policies, “the pages did not contain specific refer-ences to [the insureds’] rejection of UM/UIM coverage” equal to the policies’ li-ability limits. Jordan, 2010-NMSC-051, ¶ 32 (internal quotation marks and citation omitted). Contrary to the argument of Plaintiffs, the Jordan Court did not hold that the rejection failed as a matter of law because the insurer did not provide UM/UIM coverage options and premium pricing on the selection/rejection form, specifically. Instead the rejections failed because the insurer failed to provide the rejections as part of the policies delivered to the insureds. Id. Second, Plaintiffs’ inter-pretation of the Court’s holding in Jordan is inconsistent with the Court’s holdings in the other consolidated cases.2. Romero v. Progressive21 In Romero, there was no evidence in the record to show: (1) the insurer of-fered the insured UM/UIM coverage equal to his liability limits; (2) the insured was informed of UM/UIM coverage costs; or (3) the insured rejected the coverage in writing. Jordan, 2010-NMSC-051, ¶ 33. Again, the declaration page listed the amount of liability and UM/UIM coverage in the policy, but did not expressly indicate that the higher levels of UM/UIM coverage had been rejected. Id. The Court therefore found none of the requirements for a valid rejection of UM/UIM coverage were met.3. Lucero v. Trujillo22 When applying its UM/UIM cover-age rejection requirements to the last of the three consolidated cases, the Lucero Court held that the rejection of coverage was invalid. Id. ¶ 34. The list of UM/UIM cov-erage options and premiums provided in pull-down menus on the insurer’s website were acceptable. Id. The Court went on to say that the provision of price quotations for UM/UIM coverage and premiums on the insurer’s website was not only sufficient to satisfy the requirement, but was a “com-mendable system of offering meaningful choices to its insureds.” Id. ¶¶ 34, 35. However, the Court concluded that the failure to make the insured’s rejection part of the policy fell short of full compliance with the law. Id. ¶ 35; see 13.12.3.9 NMAC. It reached this conclusion because there was nothing in the plaintiff ’s application, declaration page, or policy to show she rejected policy limit UM/UIM coverage



http://www.nmcompcomm.us/Advance Opinionsthat would allow her to go back and review her decision. Jordan, 2010-NMSC-051, ¶ 35. The Court held that, in contempla-tion of purchasing an insurance policy, an insured must be provided with a list of available UM/UIM coverage options and corresponding premiums in order to review their options and select their pre-ferred type of coverage. Any rejections of options are confirmation of what insureds have selected and what insureds have not selected. This information and documen-tation provided to insureds enables them to review their decision to accept or reject UM/UIM coverage, at their convenience, if necessary.23 The dissent suggests that the only meaningful way for insureds to review their decision is to have the coverage options and corresponding premiums surrounding their rejection presented to them when the policy is delivered. This suggestion assumes that the listed op-tions and premiums offered, though not selected, will remain the same throughout the duration of the policy. It also assumes that a menu of options and costs on the rejection form is the only means of re-evaluating any decision to obtain UM/UIM coverage in an amount less than one’s liability insurance. In contemplation of purchasing an insurance policy, insureds are provided with a list of options and premiums in order to decide what type of UM/UIM coverage they would like to purchase, if any. Additionally, in this day and age, access to UM/UIM information can be requested from an insurer through its website at any time and at the insureds’ convenience. Traditionally, the insured can always contact the insurance agent from whom they purchased the policy. Notably in Lucero, for our purposes, this required information was provided on the insured’s website and not as part of the rejection form. Also, the Court approved of the insured’s provisions of the required information.24 The holdings in Jordan, Romero, and Lucero, read together, make clear that insurers must provide UM/UIM coverage and premium information in a way that allows the insured to make an informed decision about the coverage purchased or rejected, in a knowing and intelligent man-ner. However, they do not prescribe any one particular way the information must be provided. The Jordan Court intended to require insurers to fully inform their insureds regarding UM/UIM coverage options and corresponding premium costs

but it did not set forth the requirement that such information be provided on the written rejection form itself. Therefore, Plaintiffs have failed to state a claim upon which relief may be granted.D. Rules of Statutory Construction

and Rules of Interpretation of Insurance Regulations Are Not Applicable to Interpretation of Precedent

25 In interpreting New Mexico’s unin-sured motorist statute, Jordan recognized that the New Mexico Supreme Court has consistently interpreted Section 66-5-301 and its implementing regulation, 13.12.3.9 NMAC, liberally, holding that the provi-sion of the maximum possible amount of UM/UIM coverage in every insurance policy is the default rule. Jordan, 2010-NMSC-051, ¶ 15. “[A]ny exception to that rule must be construed strictly to protect the insured.” Id. (internal quotation marks and citation omitted).26 Plaintiffs present the argument that this Court should interpret Jordan using the same statutory construction principles Jordan itself used to interpret Section 66-5-301, thereby interpreting the case strictly and in favor of the insured. We are not persuaded. 27 Statutes are generally applicable and principles of statutory construction exist to enable the application of statutes to specific sets of facts in each case. Key v. Chrysler Motors Corp., 1996-NMSC-038, ¶ 13, 121 N.M. 764, 918 P.2d 350 (stating that we seek to give effect to the Legisla-ture’s intent when interpreting statutes). On the other hand, our approach to in-terpreting precedent is governed by the principle of stare decisis. Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 33, 125 N.M. 721, 965 P.2d 305 (“Stare decisis is the judicial obligation to follow precedent, and it lies at the very core of the judicial process of interpreting and announcing law.”).28 Plaintiffs do not cite any author-ity for the proposition that this Court should apply principles of statutory construction to our interpretation of precedent, and we have found none. Where a party cites no authority to support an argument, we may assume no such authority exists. In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329. Therefore, we decline to depart from well-established jurispru-dence and apply principles of statutory construction to our interpretation of the Jordan decision.

E. Jordan’s Discussion of Montano Does Not Provide Guidance in Our Decision in This Case

29 Lastly, Plaintiffs argue that Jordan’s discussion of Montano v. Allstate Indem-nity Co., 2004-NMSC-020, 135 N.M. 681, 92 P.3d 1255, demonstrates the Court’s intention to require UM/UIM coverage options or premiums to be provided in writing. Plaintiffs are correct that our Supreme Court held that an insurance company must provide the insured with the premium costs for each level of available stacked coverage and obtain a written rejection of stacking automobile insurance policy coverages in order to limit the insured liability based on an anti-stacking provision. Id. ¶¶ 19-20. However, the narrow question before this Court is whether Jordan requires UM/UIM cov-erage options or premiums to be on the written UM/UIM coverage rejection form itself. The only guidance Montano does provide is that a written rejection provides an insured with the exact coverage they have chosen. Yet, it does not provide any guidance in answering the specific ques-tion before us.III. CONCLUSION30 We conclude that the Jordan Court intended to require insurers to fully in-form insureds regarding available UM/UIM coverage options and correspond-ing premium costs when purchasing or renewing a policy, but that it did not set forth the requirement that such informa-tion be provided on the written rejection form delivered with the purchased policy. We reverse the district court’s denial of Defendants’ motion to dismiss as to that issue, and remand for further proceedings consistent with this Opinion.31 IT IS SO ORDERED. M. MONICA ZAMORA, Judge

I CONCUR:JAMES J. WECHSLER, JudgeCYNTHIA A. FRY, Judge (dissenting).

FRY, Judge (dissenting).32 I respectfully dissent. In my view, the line of Supreme Court cases address-ing the acceptable method of rejecting full UM/UIM coverage, culminating in Jordan, compels the conclusion that information regarding UM/UIM coverages and cor-responding premiums must be listed in the policy—not necessarily in the rejec-tion form—provided to the insured. Our Supreme Court in Jordan made it clear that one of the four prerequisites to valid



http://www.nmcompcomm.us/Advance Opinionsrejection of full UM/UIM coverage is that the insurer “inform the insured about pre-mium costs corresponding to the available levels of coverage.” 2010-NMSC-051, ¶ 22. The question presented by the present case is how that information must be conveyed to the insured. The Majority limits its dis-cussion to whether this information must be provided on the written rejection form and concludes that providing this informa-tion prior to the purchase of insurance was sufficient for purposes of validly rejecting UM/UIM coverage equal to the limits of liability coverage. Majority Opinion ¶¶ 6, 30.33 I have two primary disagreements with the Majority’s approach in this case. First, I do not agree with the Majority’s conclusion that providing a UM/UIM coverage/premium menu at any time prior to the insured’s rejection of maximum available coverage constitutes compli-ance with Jordan’s requirements. I think Jordan requires the insurer to provide this menu with the policy at the same time it transmits the insured’s written rejection. Second, I do not agree that we should limit our analysis to the question of whether the coverage/premium menu must be part of the insured’s written rejection form. Under our notice pleading standard, Plaintiffs’ complaint sufficiently alerted Defendant to their claim that the absence of a coverage/premium menu from the delivered policy established an invalid waiver of UM/UIM coverage.The Manner in Which UM/UIM Coverages and Premiums Must Be Disclosed 34 Based on its limited view of Plain-tiffs’ complaint, the Majority concludes that Plaintiffs validly rejected UM/UIM coverage equal to the limits of their liabil-ity coverage. The question as the Majority frames it is whether the menu of UM/UIM coverages and corresponding premiums had to be provided in the written form rejecting UM/UIM coverage equal to the policy’s liability coverage. The Majority states that Jordan did not “prescribe any one particular way the information must be provided.” Majority Opinion ¶ 24. And, in its discussion of the Lucero case that was consolidated with Jordan, the Major-ity appears to determine that pull-down menus on an insurer’s website, which were accessed by the insured prior to her purchase of UM/UIM coverage, “were ac-ceptable.” Majority Opinion ¶ 22. Thus, in the Majority’s view, if an insurer provides a coverage/premium menu at any time prior

to the purchase of UM/UIM coverage, one of the four prerequisites to valid rejection of maximum coverage is satisfied.35 My difficulty with the Majority’s view stems from the message I glean from Jordan and the line of UM/UIM cases preceding Jordan. I believe the Supreme Court has made it clear that an insurer must provide an insured the opportu-nity to reconsider his or her rejection of maximum available UM/UIM coverage after the policy is delivered. The only meaningful way to allow reconsideration is to present the insured with all of the pertinent information surrounding rejec-tion when the policy is delivered, and this includes a list of UM/UIM coverages and corresponding premiums.36 That the coverages and premiums must be provided as part of the policy is apparent from the Court’s discussion in Jordan. The Court consistently referred to the need to “[i]ncorporat[e] the rejection into the policy [in order to] keep[] the insured well-informed about the decision to reject coverage and [to] allow[] the in-sured to reconsider his or her rejection after further reflection, consultation with other individuals, or after merely having an op-portunity to review one’s policy at home.” Jordan, 2010-NMSC-051, ¶ 18 (emphasis added) (internal quotation marks and citation omitted). More significantly, the Court stated that “[p]roviding the insured with a menu of coverage options and cor-responding premium costs will enable the insured to make an informed decision about the level of UM/UIM coverage he or she wants to purchase.” Id. ¶ 21. It is hard to understand how an insured could meaningfully reconsider his or her rejec-tion of UM/UIM coverage if the menu of coverages and premiums is not included in the policy. Cost is obviously an important part of the insured’s decision to reject. See id. ¶ 22 (stating that rejection is ineffective unless the insurer “incorporate[s] that rejection into the policy in a way that affords the insured a fair opportunity to reconsider the decision to reject”). And it seems clear that the Supreme Court anticipated that this menu would be part of the policy when it stated, “By requiring insurance carriers to list premium costs corresponding to each available UM/UIM coverage level, we are providing specific guidance concerning the form and man-ner that valid offers and rejections of UM/UIM insurance must take to comply with controlling statutory and regulatory provi-sions.” Id. ¶ 25 (emphasis added).

37 I am also not persuaded by the Ma-jority’s view that requiring the policy to include UM/UIM coverage and premium options is inconsistent with the Jordan Court’s holdings in the other consoli-dated cases addressed in Jordan. Major-ity Opinion ¶ 19. Nothing in the Jordan Court’s discussion about the Romero or Lucero policies contradicts a requirement for including these options in the policy. Instead, the Court simply noted that nei-ther policy satisfied the requirements for a valid rejection for a variety of reasons. In addition, I do not agree that the Court concluded that the pull-down menus in the Lucero situation were “sufficient to satisfy the requirement.” Majority Opinion ¶ 22. The Jordan Court stated that “[d]espite [the insurer’s] commendable system of offering meaningful choices to its insureds, full compliance with the requirements of the law was not achieved because the rejection was never made a part of Diana Lucero’s written policy.” 2010-NMSC-051, ¶ 35 (emphasis added). I do not read this as stating that the only missing requirement was inclusion of Lucero’s written rejection as part of the policy. Instead, I read it as stating that a valid rejection must be made part of the policy and that the policy must “provide[ the insured] evidence of her re-jection for later reference or reflection.” Id. I do not see how the insured could mean-ingfully reflect about rejection without being provided with a menu of coverages and premiums. Such reflection would be made in a vacuum if the menu were not available for the insured to consult.38 All of this is not to say that the menu of UM/UIM coverages and premi-ums must be part of the rejection form itself. Instead, I think Jordan tells us that the menu must be provided in the policy along with the rejection form in order to give the insured a chance to reconsider the rejection. This brings me to my second disagreement with the Majority.The Complaint’s Claims Are Not Limited to Deficiencies in the Rejection Form39 I further disagree with the Majority’s conclusion that we should read Plaintiffs’ complaint as asserting only the specific claim that UM/UIM coverage/premium information must be included in the re-jection form. Majority Opinion ¶ 6. New Mexico adheres to the principles of notice pleading, which require “only that the plaintiff allege facts sufficient to put the defendant on notice of his claims.” Madrid v. Village of Chama, 2012-NMCA-071, ¶



http://www.nmcompcomm.us/Advance Opinions17, 283 P.3d 871. The complaint in this case provided adequate notice of Plaintiffs’ claims. The complaint alleged:

A rejection of UM/UIM cover-age equal to the liability limits in an automobile insurance policy must be made in writing and must be made part of the insur-ance policy that is delivered to the insured. . . . In order to honor these requirements effectively, insurers must provide the insured with the premium charges corre-sponding to each available option for UM/UIM coverage so that the insured can make a knowing and intelligent decision to receive or reject the full amount of coverage to which the insured is statutorily entitled.

While other paragraphs in the complaint contained allegations suggesting that the coverage waiver itself must contain the coverage/premium information, I think the overall thrust of the complaint suf-ficed to inform Defendant that Plaintiffs claimed they should have been provided this information when they were provided with their rejection form as part of their policy.40 In the context of a motion to dismiss for failure to state a claim, our case law does not require a plaintiff in his or her

complaint to use specific language or to establish the likelihood of success on the merits. See Madrid, 2012-NMCA-071, ¶ 17 (explaining that “our appellate courts have never required trial courts to consider the merits of a plaintiff ’s allegations when deciding a motion to dismiss, and we see no justification for requiring such techni-cal forms of pleadings now”). Instead, in considering a motion to dismiss under Rule 1-012(B)(6), a court tests “the legal sufficiency of the complaint, not the factual allegations of the pleadings which, for pur-poses of ruling on the motion, the court must accept as true.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 2, 134 N.M. 43, 73 P.3d 181 (internal quotation marks and citation omitted). “Dismissal under Rule 1-012(B)(6) is appropriate only if the non-moving party is not entitled to recover under any theory of the facts alleged in their complaint.” Madrid, 2012-NMCA-071, ¶ 18 (internal quotation marks and citation omitted). The court “resolve[s] all doubts in favor of sufficiency of the complaint.” Id. (internal quotation marks and citation omitted). “The purpose of our rule is to test the law of the claim, not the facts that support it.” Id. (internal quota-tion marks and citation omitted).41 Plaintiffs’ complaint provided notice that the UM/UIM coverage/premium menu was not provided in a way meaning-

ful to an intelligent rejection of maximum available UM/UMI coverage. One mean-ingful way to provide the information is to include it in the policy. We do not know if the policy provided this information because the policy is not in the record, and there is nothing else in the record shedding light on the matter. As a result, whether the policy provided this information is a matter for proof introduced in the district court, not a matter for determination in the context of a Rule 1-012(B)(6) motion.42 Given my analysis of the holdings in Jordan, Plaintiffs’ complaint states a claim supportable by the law. That claim is that Defendant was required and failed to provide Plaintiffs information on UM/UIM coverages and premiums at the same time that it provided them with the written rejection form in order to establish that Plaintiffs had validly rejected UM/UIM coverage equal to their liability coverage. In my view, the district court erroneously dismissed Plaintiffs’ legally supportable claim, and its judgment should be re-versed. If, on remand, Defendant can prove that it provided the coverage/premium menu with the policy and the rejection form, then Defendant should prevail on the merits. Because the Majority disagrees, I respectfully dissent. CYNTHIA A. FRY, Judge



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ClassifiedPositions

Associate Trial Attorney/Assistant Trial Attorney or Senior Trial AttorneyColfax CountyThe Eighth Judicial District Attorney’s Office is accepting applications for an entry level Associate Trial Attorney, Assistant Trial At-torney or Senior Trial Attorney in the Raton Office. The position will be responsible for a felony and misdemeanor caseload plus administrative duties. Salary will be based upon experience and the District Attorney Personnel and Compensation Plan. Please send interest letter/resume to Daniel L. Romero, Chief Deputy District Attorney, 105 Albright Street, Suite L, Taos, New Mexico 87571 or [email protected].

Prosecutor Position AvailableThe Twelfth Judicial District Attorney’s Office in Otero/Lincoln County has a job opening available for a Senior Trial Attorney or Assistant Trial Attorney position. Job re-quirements, qualifications, skills, and other information pertaining to this position can be viewed at the New Mexico District Attor-neys’ website at www.da.state.nm.us under personnel inquiries. Salary offered will be based on qualifications and experience and is consistent with the New Mexico District Attorney’s Association Pay and Compensa-tion Plan. Interested individuals should send a letter of interest and a resume to District Attorney, Diana A. Martwick, 1000 New York Ave., Room 101, Alamogordo, NM 88310 or fax to 575-434-2507.

Full-Time Staff AttorneyNew Mexico Center on Law and Poverty (www.nmpovertylaw.org) seeks full-time staff attorney. Required: Law degree and license; excellence research, writing, and legal advocacy skills; ‘no-stone-unturned’ persistence and capacity to lead; ability to be articulate and forceful in the face of pow-erful opposition; ability to problem-solve creatively; detail-orientation; strong Spanish language skills. Preferred: familiarity with poverty and civil rights law and legislative ad-vocacy. Varied, challenging, rewarding work. Good non-profit salary. Excellent benefits. Balanced work schedule. Apply in confidence. Send resume and letter specifying how you meet each of the position requirements to [email protected]. EEOE

http://www.nmfog.org


http://www.sfainc.com

http://www.bezpalkolawfirm.com



http://www.da.state.nm.us

http://www.nmpovertylaw.org



Request for Proposals to Provide Legal ServicesThe Pueblo of Laguna is seeking proposals to provide General or Special Counsel legal services by the designated times and dates: Due by April 30, 2014 at 4:30 PM. Proposal information can be accessed at http://www.lagunapueblo-nsn.gov/rfp_rfq.aspx. For ad-ditional information or questions, contact the Government Affairs Office at (505) 552-6654.

13th Judicial District AttorneyDeputy District Attorney – Cibola CountySenior Trial Attorney/Associate Trial AttorneyCibola, Sandoval, Valencia CountiesDeputy District Attorney - The Thirteenth Judicial District Attorney’s Office is accepting applications for an experienced attorney to fill the position of Deputy District Attorney at the Cibola County Office in Grants, NM. This is an advanced level position which requires experience in complex litigation, prosecution of high level criminal cases and management of a mid-sized district office. Requirements include admission to NM State Bar plus a minimum of six years as a practicing attorney in criminal law, at least two years of supervi-sory/management experience and knowledge of employment law. Senior Trial Attorney - in the Cibola (Grants), Sandoval (Bernalillo) or Valencia (Belen) County Offices. This position requires substantial knowledge and experience in criminal prosecution, rules of criminal procedure and rules of evidence, as well as the ability to handle a full-time complex felony caseload. Admission to the New Mexico State Bar and a minimum of five years as a practicing attorney are also required. Associate Trial Attorney - an entry level position for Cibola (Grants), Sandoval (Bernalillo) or Valencia (Belen) County Of-fices. The position requires misdemeanor, juvenile and possible felony cases. Upon request, be prepared to provide a summary of cases tried. Salary for each position is com-mensurate with experience. Send resumes to Kathleen Colley, District Office Manager, PO Box 1750, Bernalillo, NM 87004, or via E-Mail to: [email protected]. Deadline for submission of resumes: Open until posi-tions are filled.

Assistant District AttorneyThe Fifth Judicial District Attorney’s office has an immediate position open to a new or expe-rienced attorney. Salary will be based upon the District Attorney Personnel and Compensation Plan with starting salary range of an Associ-ate Trial Attorney to a Senior Trial Attorney ($41,685.00 to $72,575.00). Please send resume to Janetta B. Hicks, District Attorney, 400 N. Virginia Ave., Suite G-2, Roswell, NM 88201-6222 or e-mail to [email protected].

Position Available for a Deputy District Attorney in Las Vegas, New MexicoMust have at least five (5) years trial experi-ence. This position offers a VERY competitive salary. Please forward your letter of interest and resume to Mary Lou Umbarger, District Office Manager, P.O. Box 2025, Las Vegas, New Mexico 87701; e-mail: [email protected]. Salary range is between $56,239 and $80,192 annually. Salary will be based on experience, and in compliance with the District Attorney’s Personnel and Compensation Plan.

Hearing Officer Family Court The Second Judicial District Court is ac-cepting applications for an At-Will Hearing Officer in Family Court. This position will en-compass a wide range of duties with emphasis on Pro Se Litigants and will also include working in both Child Support and Domestic Relations. Funding for this position will be from two sources (half mediation funds and half general funds). Qualifications: Must be a graduate of an ABA accredited law school; possess and maintain a license to practice law in the State of New Mexico. Five (5) years of experience in the practice of law, with at least twenty percent of that practice having been in family law or domestic relations matters. SALARY: $43.364 hourly, plus benefits. Send application or resume supplemental form with proof of education to the Second Judicial District Court, Human Resource Office, P.O. Box 488 (400 Lomas Blvd. NW), Albuquer-que, NM, 87102. Applications without copies of information requested on the employment application will be rejected. Application and resume supplemental form may be obtained on the Judicial Branch web page at www.nmcourts.gov. Resumes will not be accepted in lieu of application. CLOSES: May 7, 2014 at 5:00 p.m.

Office of the State Engineer/ Interstate Stream Commission (OSE/ISC) State of New Mexico The Litigation & Adjudication Program seeks multiple New Mexico licensed attorneys to represent the State Engineer and the State in water rights matters in the federal & state courts & at administrative hearings. The positions are located in Santa Fe. The can-didates must have a Juris Doctorate from an accredited law school & 5 years experience in the practice of law. A demonstrated inter-est in water law and experience in litigation, water rights, natural resources or Indian law preferred. Lawyer – Advanced: job id #2014-01274; Salary range - $43,526 to $77,380. Applications are being accepted by the State Personnel Office until May 2, 2014. The OSE/ISC is an Equal Opportunity Employer

Mid-Level Associate Attorney PositionArchibeque Law Firm, an AV rated insurance defense/civil litigation firm, is seeking an ex-perienced attorney for its Albuquerque office. Applicant must be a graduate of an accredited law school, licensed in New Mexico, with a minimum of 8-10 years’ experience specifi-cally in the practice areas of civil litigation and insurance defense. Ideal candidate will have proven litigation experience including managing assigned case-load, taking and defending depositions, attending hearings, arbitrations and mediations and tracking billable time. Candidate will also possess strong analytical skills, excellent oral and written communication skills, and be a highly motivated professional that can take initiative and work independently. Extensive in state travel is required. Please email letter of interest and resume, including three pro-fessional references and salary requirements, to [email protected].

Attorney AssociateThe Third Judicial District Court in Las Cruces is accepting applications for a full-time, Attorney Associate. Requirements include admission to the NM State Bar plus a minimum of three years experience in the practice of applicable law, or as a law clerk. Under general direction, as assigned by a judge or supervising attorney, the duties in-clude but are not limited to, reviewing cases, performing legal research, evaluation, analy-sis, writing and making recommendations concerning the work of the Court. Bilingual and experience in mediation/arbitration pre-ferred. Please refer to http://www.nmcourts.gov/jobs/jobselectpage.php for application/resume procedure. For questions, contact Briggett Becerra, HR Administrator Sr. at 575-528-8310. Deadline for submission is 5:00pm, May 7, 2014.

Oil and Gas Title and Transaction AttorneyCotton Bledsoe Tighe & Dawson, P.C., is a well-known law firm in Midland, Texas, one of the leading energy centers of the South-west. Cotton Bledsoe is highly regarded both by the oil and gas industry and among other law firms in Texas and surrounding states. Cotton Bledsoe has an immediate need for an oil and gas title and transaction attorney. Candidates should have at least 5 years experience in oil and gas title or trans-action work. Both associate and shareholder level attorneys considered. No portable work necessary. Please forward resumes and law school transcript to Michael Hall at [email protected] or P.O. Box 2776, Midland, Texas, 79702-2776.


http://www


http://www.nmcourts.gov

http://www.nmcourts.gov


http://www.nmcourts


Staff Attorney- Anadarko, OKWestern Farmers Electric Cooperative is re-cruiting for a Staff Attorney which provides legal advice and counsel to Cooperative management and personnel on a variety of topics including: regulatory compliance, contract development, contract adminis-tration, litigation management, legal cor-respondence, and the creation and review of business documents such as contracts, interconnection agreements, transmission service agreements, and regulatory matters involving power supply, transmission servic-es and reliability. The incumbent researches, drafts, reviews, interprets and negotiates legal documents on behalf of various depart-ments on a wide range of legal questions. The Staff Attorney will focus on regulatory compliance issues. Visit www.wfec.com for complete details and apply on-line. WFEC IS AN EQUAL OPPORTUNITY EMPLOYER MINORITIES, WOMEN, DISABLED, AND VETS ARE ENCOURAGED TO APPLY EOE/M/W/D/V

Request for ApplicationsCity of AlbuquerqueVarious Legal Secretary PositionFour (4) Legal Secretary Position is available within the Litigation Real Estate Land Use/Municipal Affairs and the Safe City Strike Force Divisions of the Legal Department of the City of Albuquerque. Position Summary: will perform a variety of responsible legal secretarial duties in support of a assigned at-torney or attorneys including preparing and reviewing legal documents; perform the more difficult and complex clerical duties with the assigned work unit and provide secretarial and administrative support to an assigned division head. Minimum Education and Experience requirements: Associates’ degree in business administration or a related field, may substitute three (3) years secretarial experience to include two (2) years as a Legal Secretary. ProLaw and/or experience with a case management system is desirable. To Ap-ply: All applicants must submit, by April 30, 2014, a City Application. Resumes will not be accepted in lieu of the application. An On-Line Application Process can be accessed at the web site www.cabq.gov\jobs. Applications are also available at the City of Albuquerque Human Resources Department 400 Marquette NW 7th Floor Suite 703 Albuquerque NM 87103. Copies of required certifications, registrations, and/or licenses, if not attached on-line, must be provided at the time of interview.

Assistant Trial Attorney, Senior Trial Attorney, and Deputy District Attorney PositionsThe Ninth Judicial District Attorney’s Office, located in Curry and Roosevelt Counties, is now accepting resumes for Assistant Trial Attorney, Senior Trial Attorney, and Deputy District Attorney positions. Salary will be commensurate with experience and budget availability. Excellent benefits available. Please send a cover letter, resume and refer-ences to Andrea Reeb, District Attorney, 417 Gidding, Ste 200 Clovis, NM 88101.

Assistant County Attorney Primary Purpose: Performs governmental legal work of the highest degree of profes-sional complexity and difficulty. Minimum Qualifications: Applicants must be licensed to practice law in the State of New Mexico and in the federal courts within the State of New Mexico. Applicants must have at least three (3) years’ experience in the general practice of law or as an attorney practicing law for a public or private employer Salary $27.0817/hr. - $40.6221/hr. For a complete job descrip-tion go to santafecountynm.gov or contact 992-9880. Closing date: Open until filled.

Contract Attorney - Premium TaxesThe Office of Superintendent of Insurance is seeking a contract attorney to provide legal advice relating to New Mexico insur-ance premium taxes. For a detailed scope of work, please contact Ana Kippenbrock, Law Clerk, at 505-476-0333, Office of the General Counsel, Office of Superintendent of Insurance (OSI), 1120 Paseo de Peralta, Room 430, Santa Fe, NM 87501. If interested, please send a resume and a cost proposal to Ms. Kippenbrock by May 12, 2014. The work must be completed by June 30, 2014.

Eleventh Judicial District Attorney’s Office, Div II The McKinley County District Attorney’s Of-fice is currently seeking immediate resumes for one (1) Senior Trial Prosecutor. Persons who are in good standing with another state bar or those with New Mexico criminal law experience in excess of 5 years are welcome to apply. The McKinley County District At-torney’s Office provides regular courtroom practice and a supportive and collegial work environment. Enjoy the spectacular outdoors in the Adventure Capital of New Mexico. Salaries are negotiable based on experience. Submit letter of interest and resume to Karl R. Gillson, District Attorney, 201 West Hill, Suite 100, Gallup, NM 87301, or e-mail letter and resume to [email protected] By 5:00 p.m. May 30, 2014.

Associate AttorneyOlsen Parden Williams, P.C., an insurance defense firm, is seeking a hard-working as-sociate attorney with 4-7 years of experience in insurance defense, insurance coverage, employment law and civil litigation. Fast paced, positive environment. Please submit resume, writing sample and transcripts to [email protected].

Request for Applications City of Albuquerque Assistant City Attorney Position Assistant City Attorney: Assistant City At-torney position available with the Litigation Division with desired experience in civil litigation in handling pretrial discovery, mo-tion practice, trial preparation and trial. We are seeking attorneys who have an interest in defending civil rights, personal injury, and premises liability cases within a positive team environment. Salary will be based upon expe-rience and the City of Albuquerque Attorney's Personnel and Compensation Plan with a City of Albuquerque Benefits package. Please submit resume to attention of "Litigation At-torney Application"; c/o Roberta Duran, Fis-cal Officer; P.O. Box 2248, Albuquerque, NM 87103. Application deadline is May 2. 2014

City AttorneyThe City of Roswell, NM is seeking a City Attorney with knowledge of state statutes relating to municipal affairs. Graduation from an accredited law school with a Juris Doctor degree, and six (6) years' increas-ingly responsible professional legal experi-ence. Two (2) years directly associated with government operations preferred. Applica-tion and detailed job description for this position is available on our website at www.roswell-nm.gov. Applications can be faxed to 575-624-6926 or e-mailed to [email protected]. Deadline to apply is 5:00 pm, May 9, 2014.

Legal Secretary/Legal AssistantDowntown insurance defense firm seeking FT legal secretary with 3+ yrs. recent litiga-tion experience. Current knowledge of State and Federal District Court rules a must. Prior insurance defense experience preferred. Strong work ethic, positive attitude, superior grammar, clerical and organizational skills required. Good benefits. Salary DOE. Send resume and salary history to: Office Admin-istrator, Madison & Mroz, P.A., P.O. Box 25467, Albuquerque, NM 87125-5467 or fax to 505-242-7184.

All advertising must be submitted via e-mail by 4 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Wednesday). Advertising will be accepted for publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher and subject to the availability of space. No guarantees can be given as to advertising publication dates or placement although every effort will be made to comply with publication request. The publisher reserves the right to review and edit ads, to request that an ad be revised prior to publication or to reject any ad. Cancellations must be received by 10 a.m. on Thursday, 13 days prior to publication.

For more advertising information, contact: Marcia C. Ulibarri at 505-797-6058 or email [email protected]

SUBMISSION DEADLINES


http://www.wfec.com

http://www.cabq.gov\jobs


http://www.roswell-nm.gov

http://www.roswell-nm.gov



Miscellaneous

Office Space

Services

Briefs, Research, Appeals —Leave the writing to me. Experienced, effec-tive, reasonable. [email protected](505) 281 6797

620 Roma N.W.620 ROMA N.W., located within two blocks of the three downtown courts. Rent includes utilities (except phones), fax, internet, janito-rial 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.

Furnished Office For Rent -One block from courthouses; all amenities: copier, fax, telephone system, conference room, phone service available. Rate: $800 a month. Call Ramona at 243-7170 for further information.

3 Large Offices Available To Rent! BEST LOCATION IN TOWN, 1 Block or less to all courthouses. Up to 4 large offices available, secretary space,library, security, receptionist, cleaning, parking, phone, etc. included. Call Office Manager at 247-2972.

Professional Liability InsurancePROFESSIONAL LIABILITY INSURANCE through Hanover - competitive rates. Dennis W. Montoya, JD, Farmers Insurance Agent, 505-328-1867.

Positions Wanted

ParalegalExperienced mature paralegal seeks part-time or contract work in Santa Fe. Please contact Tish Gallarda at (505) 603-7442 or [email protected]. Resume and excellent written refer-ences will be provided.

Request for ApplicationsCity of AlbuquerqueParalegal PositionParalegal position is available within the Litigation Division Employment Section of the Legal Department of the City of Albu-querque. Position Summary: Paralegal with a civil litigation background who has the skills, knowledge, and ability to assist attor-neys in civil litigation practice, employment litigation and/or administrative hearings, including from the inception of a civil law-suit through trial. Minimum education and experience requirements: Associates Degree in Paralegal Studies, plus three (3) years’ experience as a paralegal; may substitute two (2) years of additional paralegal experience for the Associates Degree in Paralegal Stud-ies or a Certificate in Paralegal Studies, plus five (5) years’ experience as a Legal Secretary/Assistant. ProLaw and/or experience with a case management system is desirable. To Apply: All applicants must submit, by April 30, 2014, a City Application. Resumes will not be accepted in lieu of the application. An On-Line Application Process can be accessed at the web site :http://www.cabq.gov/jobs. Applications are also available at the City of Albuquerque Human Resources Depart-ment 400 Marquette NW 7th Floor Suite 703. Albuquerque NM 87103. Copies of required certifications, registrations, and/or licenses, if not attached on-line, must be provided at the time of interview

Attention Foreclosure AttorneysExperienced Court Appointed Receiver Responsible for Assets of $16 Million Com-mercial Realtor/Developer since 1970. Larry Levy 505.263.3383 or [email protected] available.

Full Service Offices Downtown-PLAZA 500Includes furniture, telephone, high speed internet, conference rooms, training room, executive lounge, receptionist and parking. Located in the Class A, 22-story Albuquer-que Plaza located next to the Hyatt Regency. Starting at $600 monthly. 505-944-9090. ABQPlaza500.com.

Appellate Briefs Written by Terence Grant J.D. (magna cum laude). Full-time research and writing for NM attorneys since 1997, including appeals briefs. Rate: $95 per hour. [email protected] (505) 508-1755. “Thanks to your magnifi-cent work in this case, the Court of Appeals ruled in favor of our client!” - Albuquerque attorney Jeannette Martinez Whittaker

ParalegalBusy Family Law Firm looking for full time, experienced paralegal. Duties include client interaction, pleading preparation, discovery preparation, telephone and email communi-cation with clients and attorneys. Competi-tive salary, retirement availability and vaca-tion/bonus options. Spanish speaking ability welcome. Please email letter of interest and resume to [email protected]

Paralegal Available for Contract AssignmentsAccomplished litigation paralegal available for contract assignments. Experienced pre-paring complex, large document cases for trial; discovery pleadings, deposition sum-mary, organization and analysis of medical records and bills, trial notebooks, etc. Refer-ences upon request 681-2154

Bilingual Legal AssistantEnlace Comunitario seeks a bilingual Legal Assistant (Spanish/English) for Domestic violence and domestic matters cases. For a full description visit our website, enlacenm.org. To apply send resume to [email protected] or fax at (505)246-8973.

Searching for Last Will and TestamentWallin, Huss & Mendez is searching for a Last Will and Testament of Gene Edwin Harvey. Anyone with knowledge of such a document please contact (505) 832-6363 or e-mail [email protected].

Contract ParalegalWanted Contract Paralegal with extensive NM Personal Injury trial experience. Send resume case history Morris Law Firm 901 Lomas Blvd. NW Albuquerque, NM 87102

Part-Time Contract Paralegal PositionPart-Time Contract Paralegal needed for busy law firm to assist attorneys on complex litiga-tion matters. Paralegal experience required, including preparing, filing and organizing discovery requests and responses. You must be self-motivated, organized, detail oriented, and be willing and able to work fast. Please send cover letter, reference, resume, salary requirements and history to: Bauman Dow & León, P.C., ATTN: Alberto A. León, PO Box 30684, Albuquerque, NM 87190.

Litigation ParalegalHinkle Law Firm in Santa Fe seeking litiga-tion paralegal. Experience (2-3 years) re-quired in general civil practice, including la-bor and employment, insurance defense, and professional malpractice defense. Candidates should have excellent writing and research skills, and the ability to work independently. Paralegal certificate or degree is necessary. Those who do not meet this criteria need not apply. Competitive salary and benefits. All inquires kept confidential. Santa Fe resi-dent preferred. E-mail resume to: [email protected]


http://www.cabq.gov/jobs




of New MexicoMRC

richard radecki MD

Medical Rehabilitation Center of New Mexico3874 Masthead St NE Albuquerque, NM 87109 • (505) 338-2077www.mrcofnewmexico.com • [email protected]

IME

Life Care Plan

Medicare Set-A-Side

Evidence Based

Causation

Return to Work

National Guidelines

Second Opinion

Impairment Rating

Panel IME

At the Medical Rehabilitation Center of New Mexico, Dr. Richard Radecki, Board Certified in Physical Medicine and Rehabilitation, provides medical/legal services including:

• Independent Medical Evaluations• Impairment Ratings• Chart Reviews• Expert Witness Testimony• Panel Independent Medical Evaluations

Dr. Radecki is certified to perform Independent Medical Evaluations by ABIME for the AMA Guides to the Evaluation of Permanent Impairment for the 4th, 5th, 6th Editions.

http://www.mrcofnewmexico.com


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april 23, 2014 • volume 53, no. 17 - state bar of new mexico law day: may 1 special insert cle...

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