january 4, 2012 • volume 51, no. 1...bar bulletin - january 4, 2012 - volume 51, no. 1 1 rachel by...

Bar Bulletin - January 4, 2012 - Volume 51, No. 1 1

Rachel by Matthew Lutz (see page 3) Matrix Fine Art, Albuquerque

Inside This Issue

January 4, 2012 • Volume 51, No. 1

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

NM Supreme 100th Anniversary Observance .....4

2011 State Bar Dues and Licensing Fees ..............5

Navajo Preference Laws and the Equal Employment Opportunity Commission: Still at Odds After 25

Years, by Danny Jarrett and Andrew Robeda ...6

New Mexico Courts E-Filing Update ..................6

Mock Trial Coaches Needed ................................7

Clerk’s Certificates .............................................13

Rules/Orders

Proposed Revisions to the Rules of Criminal Procedure for the District Courts ..................16

From the New Mexico Supreme Court

2011-NMSC-043, No. 33,029: State of New Mexico, ex rel. v. Martinez .......19

2011-NMSC-044: Nos. 32,388/32,402: State v. Harper ..............................................21

www.nmbar.org

http://www.nmbar.org

2 Bar Bulletin - January 4, 2012 - Volume 51, No. 1

You’re Invited! What: State Bar of New Mexico’s 126th Birthday Where: State Bar Center

5121 Masthead NE, Albuquerque, NM When: 4 p.m., January 20

The State Bar is proud of the tremendous dedication and service that our membership has given to the legal profession and the public. We hope you will join us for this important celebration.

Hans William Voss, PresidentJoe Conte, Executive Director

We will honor attorneys celebrating 25 and 50 years of service.

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

mailto:[email protected]


Notices ................................................................................................................................................................42011 State Bar Dues and Licensing Fees ..................................................................................................5Navajo Preference Laws and the Equal Employment Opportunity Commission: Still at Odds After 25 Years, by Danny Jarrett and Andrew Robeda ........................................6New Mexico Courts E-Filing Update .......................................................................................................... 6Legal Education Calendar ............................................................................................................................8Writs of Certiorari ......................................................................................................................................... 10List of Court of Appeals’ Opinions ........................................................................................................... 12Clerk’s Certificates ......................................................................................................................................... 13Recent Rule-Making Activity ..................................................................................................................... 14Rules/Orders

Proposed Revisions to the Rules of Criminal Procedure for the District Courts ............ 16

Opinions From the New Mexico Supreme Court

2011-NMSC-043, No. 33,029: State of New Mexico, ex rel. v. Martinez ............................ 19

2011-NMSC-044: Nos. 32,388/32,402: State v. Harper ............................................................ 21

Advertising ...................................................................................................................................................... 26

Officers, Board of Bar Commissioners Hans Voss, President Andrew J. Cloutier, President-Elect Erika Anderson, Vice President Martha Chicoski, Secretary-Treasurer Jessica A. Pérez, Immediate Past President

Board of Editors Ian Bezpalko Danny W. Jarrett Cynthia A. Christ Maureen S. Moore Kristin J. Dalton Tiffany L. Sanchez Jocelyn C. Drennan Michael J. Thomas Jennifer C. Esquibel Joseph Patrick Turk

State Bar Staff Executive Director Joe Conte Membership and Communications Director Chris Morganti Editor Dorma Seago 505-797-6030•[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 ©2012, 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

January 4, 2012, Vol. 51, No. 1Cover Artist: Matthew Lutz is an artist and educator in Rio Rancho. His work represents individuals who have had a positive impression on the his life, whether directly or indirectly (www.matthewlutz.com).

4 Bankruptcy Law Section BOD, noon, U.S. Bankruptcy Court

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

5 Real Property, Trust and Estate Section BOD, 11 a.m., via teleconference

9 Attorney Support Group, 5:30 p.m., First United Methodist Church

10 Lawyers Professional Liability and Insurance Committee, noon, State Bar Center

11 Children’s Law Section BOD, noon, Monte Carlo Restaurant, Albuquerque

11 Criminal Law Section BOD, noon, State Bar Center

12 Elder Law Section BOD, noon, State Bar Center

12 Intellectual Property Section BOD, noon, Lewis and Roca LLP

12 Public Law Section BOD, noon, Montgomery and Andrews, Santa Fe

12 Business Law Section BOD, 4 p.m., via teleconference

13 Board of Editors, 8:30 a.m., State Bar Center

14 Ethics Advisory Committee, 10 a.m., State Bar Center

17 Solo and Small Firm Section BOD, 11:30 a.m., State Bar Center

18 Law Practice Management Committee, noon, State Bar Center

19 Health Law Section BOD, 7:30 a.m., via teleconference

Meetings

January 2012

table of Contents







http://www.matthewlutz.com


notiCesWith respect to the courts and other tribunals:

I will be a vigorous and zealous advocate on behalf of my client, but I will remember that excessive zeal may be detrimental to my client’s interests or the proper functioning of our justice system.

ProfessionalisM tiPCourt newsNM Supreme CourtCode of Judicial Conduct Committee Vacancy Three vacancies exist on the Code of Judicial Conduct Committee. Persons interested in volunteering time on these committees may send a letter of interest and/or resume to Joey D. Moya, Chief Clerk, PO Box 848, Santa Fe, NM 87504-0848. Deadline for submissions is Jan. 19.

Commission on Access to JusticeJanuary Meeting The next meeting of the Commission on Access to Justice is from noon–4 p.m., Jan. 13, at the State Bar Center. Interested parties from the private bar and the public are welcome to attend. Further information about the Commission is available on the State Bar’s website, www.nmbar.org.

First Judicial District CourtMass Reassignment of Cases Effective Jan. 4, a mass reassignment of juvenile and neglect and abuse cases will occur pursuant to NMSC Rule 23-109, the Chief Judge Rule. All of the juvenile and neglect and abuse cases previously assigned to Judge Michael Vigil, Division IV, will be reassigned to Judge Mary Marlowe-Sommer, Division VIII. A mass reassignment of Los Alamos cases will occur pursuant to NMSC Rule 23-109, the Chief Judge Rule. All of the Los Alamos cases previously assigned to Judge Barbara J. Vigil, Division I; Judge Sarah Singleton, Division II; Judge Ray-mond Z. Ortiz, Division III; Judge Michael E. Vigil, Division IV; Judge Stephen Pfeffer, Division VI; Judge T. Glenn Ellington, Division VII; and Judge Mary Marlowe-Sommer, Division VIII, will be reassigned to Judge Sheri A. Raphaelson, Division V. Numerous civil cases (habeas corpus only) previously assigned to Judge Barbara J. Vigil, Division I; Judge Raymond Z. Ortiz, Divi-

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 Through1st Judicial District Court Criminal, civil, domestic relations, and probate cases 1986–1997 January 21 505-455-8275

sion III; Judge Michael E. Vigil, Division IV; and Judge Stephen D. Pfeffer, Division VI, will be reassigned to Judge Sheri A. Raphaelson, Division V. Parties who have not previously exercised their right to chal-lenge or excuse will have 10 days from Jan. 4 to challenge or excuse the judge pursuant to Rule 1-088.1.

Second Judicial District CourtChange in Clerk’s Office Hours All court clerk’s offices in the 2nd Judicial District Court are open from 8 a.m.–4 p.m. (open throughout the lunch hour). Direct questions to 505-841-8400.Judicial Vacancy A vacancy on the 2nd Judicial District Court will exist in Albuquerque as of Jan. 1 upon the retirement of the Honorable Neil Candelaria. Chief Judge Ted Baca has indicated he intends to assign the vacancy to the criminal division. The dean of the UNM School of Law, designated by the New Mexico Constitution to chair the 2nd Judicial District Nominating Committee, solicits applications for this position from lawyers who meet the statutory qualifica-tions in Article VI, Section 14 of the New Mexico Constitution. Applications, as well as information related to qualifications for the position, may be obtained from the Judicial Selection website: http://lawschool.unm.edu/judsel/application.php, or via email by calling Judicial Selection Coor-dinator Sandra Bauman, 505-277-4700. 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 Jan. 30 at the Bernalillo County Courthouse in Al-buquerque to evaluate the applicants for this position. The meeting is open to the public and those who wish to be heard about any of the candidates will have the opportunity. The deadline for complete applications is 5 p.m., Jan. 13. Applications received after that date will not be considered.

U.S. District Court for the District of New MexicoAmended Local Rules of Civil Procedure The Local Rules of Civil Procedure of the U.S. District Court for the District of New Mexico have been amended effective Jan. 1. This revision makes changes to

NM SupreMe Court

100th ANNiverSAry obServANCe January 6 marks the 100th anni-versary of President William Howard Taft’s signing of the proclamation that officially created the State of New Mexico. The New Mexico Supreme is having an observance at 1:30 p.m., Jan. 10, exactly 100 years from the day the new state’s Supreme Court justices first took their oaths of office and convened in Santa Fe. UNM Professor Emeritus Dr. Dan Chavez will give a public presentation in the courtroom on the creation of the State and the Court, followed by a question-and-answer period and appropriate birthday refreshments.


http://lawschool


www.nmbar.org

eMber beNefit of the WeekMD.N.M.LR-Civ. 83.2, Bar Admissions, Memberships and Dues, and D.N.M.LR-Civ. 83.3, Appearance of Attorneys Licensed Outside the District. The newly amended rules are available on the Court’s website at www.nmcourt.fed.us.

state bar newsAttorney Support Group • Jan. 23, 7:30 a.m.

Morning groups meet regularly on the third Monday of the month.

(changed due to MLK holiday). • Jan. 9, 5:30 p.m.

Afternoon groups meet regularly on the first Monday of the month (changed due to New Years holiday).

Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more information, contact Bill Stratvert, 505-242-6845.

Children’s Law SectionAnnual Meeting The Children’s Law Section will hold its annual meeting from 3–3:30 p.m., Jan. 12, during the Children’s Law Institute at the Hotel Albuquerque in the Potter’s Room. Watch for e-blast reminders before the event.

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites members of the legal community to bring a lunch and attend Judicial Ethics and Discipline: A Case Study (1.0 EP CLE credit) presented by Randall Roybal. The program will be held from noon–1 p.m., Jan. 11, at the State Bar Center (registration fee for attorneys–$16, members of the Paralegal Division–$10, non-members–$15). Registration begins at the door at 11:45 a.m. For more information, contact Cheryl Passalaqua, 505-247-0411, or Evonne Sanchez, 505-222-9356. This CLE will be webcast to three locations:

• Santa Fe: Montgomery & Andrews, 325 Paseo de Peralta, Santa Fe. Contact Donna Ormerod, 505-986-2520.

• Roswell: Hinkle, Hensley, Shanor & Martin LLP, 400 N. Pennsylvania, Ste. 700. Contact Dora Paz, 575-622-6510.

• Farmington: Titus & Murphy, 2021 E. 20th Street. Contact Heather Parmley, 505-326-6503.

other barsNM Criminal Defense Lawyers AssociationResources Available Discounted self-study recordings are available at www.nmcdla.org.

unMGuanajuato Summer Law InstituteJune 3–July 1 The Guanajuato Summer Law Institute offers an introduction to comparative international, and Mexican law. It is open to all law students, graduate students, and professionals interested in learning about the legal system and culture of Mexico. In addition to four courses lasting four weeks, the Institute offers an optional two-week judicial or law office externship (July 2–14) with a classroom component on Mexican Legal Systems and Social Development. For more information about the Institute, the application, or payment, contact Robyn Cote, [email protected], or visit http://mexi-canlawclasses.unm.edu.

Law Library HoursTo Jan. 9Building & Circulation

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

Reference Jan. 4–6 9 a.m.–6 p.m. Jan. 7–8 Closed Jan. 9 9 a.m.–6 p.m.

other newsNM Social Security Attorneys Association The New Mexico Social Security Attor-neys Association, a non-profit corporation, held its first meeting Dec. 13. The associa-tion is presently composed of attorneys that represent claimants seeking Social Security disability benefits. It anticipates providing education for members and non-members and spearheading proactive solutions for

Career Counseling ServicesBurned out?

Unsure of your next career move?Uncertain that practicing law is for you?

Restless in retirement?Call 505-797-6064

or visit www.nmbar.org/careerservices/ careerservices.html.

The 2012 Dues and Licensing forms have been mailed. Licensing fees and dues were due on or before Dec. 31, 2011, and are late after Feb. 1, 2012. Members who have not received the form should notify the State Bar at (505) 797-6035. Fees may be paid online through secured eCommerce at www.nmbar.org.

• Click on “Pay Dues.”• Enter your bar ID number as your user-

name and your last name as your pass-word. If your last name is fewer than six characters, enter a zero(s) following your name to make six characters.

State Bar, Disciplinary Board, and Client Protection Fund fees are mandatory and must be paid in order to maintain license status. Without exception, dues and licensing fees are payable regardless of whether you received your form.

Late fees may be assessed if payment is not postmarked by Feb. 1, 2012.

2012 StAte bAr DueS AND LiCeNSiNg feeS

administrative roadblocks to fair and effi-cient processing of Social Security disability claims. Staff and non-attorney representa-tives may join as associate, non-voting members. Address inquiries to President Victor Roybal, 230 Adams SE, Ste. A, Albuquerque, N.M. 87108, 505-265-5805.


http://www.nmcourt.fed.us

http://www.nmcdla.org


http://mexi-canlawclasses.unm.edu



http://www.nmbar.org/careerservices/



NeW MeXiCo CourtS e-fiLiNg upDAte � The system experienced two brief periods of downtime Dec. 16 and Dec.

19. Both were less than 15 minutes and only aff ected subsequent fi lings, not initial fi lings.

� Judicial Information Division staff corrected all invalid CAID numbers in the system during the week of Dec. 19 and then implemented a “fi eld edit” that prevents registration with an incorrect CAID. This will reduce the fi ling rejection rate for newly registered fi lers.

� On Dec. 20, a patch was applied that will ensure that all e-fi led cases are properly initiated in the Odyssey Case Management system at the time a user submits them. We’ll be watching the eff ect of the patch to ensure that it performs as we expect. If successful, this will increase court clerk productivity and ensure that cases are accepted in a timely manner.

� Helpful Links and Contacts• Visit https://ofs.tylerhost.net/nm for Odyssey File and Serve support, training, and contact information.

• The Judicial Information Division (JID) support is available from 8 a.m.–5 p.m., Monday–Friday. JID Help Desk 1-505-476-6911 JID Help Desk Email [email protected]

• Judicial District Emails 1st Judicial District Court: sfedefi [email protected] 2nd Judicial District Court: albdefi [email protected] 13th Judicial District Court: lludefi [email protected]

—From the New Mexico Supreme Court

By Danny Jarrett and Andrea Robeda

In 1985, the Navajo Nation (“the Nation”) enacted the Navajo Preference in Employment Act (“NPEA” or “the Act”), which created wide-sweeping rights for Navajo workers. Th e NPEA,

codifi ed at title 15, sections 601-619 of the Navajo Nation Code, contains a broad legislative scheme for regulating employment on the Navajo Nation and, among other things, creating employment opportunities through mandatory Navajo preference. Th e Act ap-plies to any employer doing business within the territorial jurisdic-tion of the Navajo Nation. Th e year 2010 marked the 25th anniversary of NPEA. Th is anniversary, coupled with the 9th Circuit Court of Appeals recent decision in EEOC v. Peabody Western Coal, 610 F.3d 1070 (9th Cir. 2010), provides an opportunity to examine the Act and how it has been treated by federal courts, especially with respect to Title VII of the Civil Rights Act.

In EEOC v. Peabody Western Coal, the 9th Circuit held that the Navajo Nation should be joined as a defendant in a case for employment discrimination under Title VII of the Civil Rights Act brought by the EEOC. Id. at 1074. Th e employer, Peabody Western Coal Company, mines coal at the Black Mesa Complex and Kayenta Mine on the Navajo and Hopi reservations in northeastern Arizona, pursuant to leases with the Navajo and Hopi Tribes. Id. Th e leases require Peabody to provide an employment preference to Navajo job applicants. Id. Th e leases were drafted and approved by the Department of Interior under the

Indian Mineral Leasing Act of 1938. Id. at 1075. In a declaration submitted in the case, a former head of the Department stated that the Department drafted the leases and required the inclusion of the Navajo employment preferences. Id. Th e Department also approved amendments and extensions of the leases. Id.

Th e EEOC sued Peabody, alleging the company was unlawfully dis-criminating on the basis of national origin, in violation of Title VII,1 by implementing the Navajo employment preferences contained in the leases. Id. Th e EEOC requested injunctive relief prohibiting

Peabody from continuing to implement the Navajo employment preferences and damages, including back pay with inter-est, compensatory damages, and punitive damages. Id. Peabody moved for summary judgment and dismissal of the action, argu-ing, in part, that Rule 19 of the Federal Rules of Civil Procedure required dismissal when a necessary and indispensable party to the action cannot be joined to the action. Id. at 1076. Peabody argued that because the Nation is a necessary and indispensable party that has sovereign immunity from being joined, the case should be dismissed.

Id. Th e district court agreed and dismissed the case. Id.

Th e 9th Circuit reversed the district court, ruling that the EEOC could join the Nation to the action because the Nation could not assert sovereign immunity against the federal government. EEOC v. Peabody Western Coal Co., 400 F.3d 774 (9th Cir. 2005) (“Pea-body II”). Th e case was returned to the district court and, in an

NAvAJo prefereNCe LAWS AND the eQuAL eMpLoyMeNt opportuNity CoMMiSSioN: StiLL At oDDS After 25 yeArS

As tribes continue involvement in signi� cant economic enterprises,

including gaming, the United States government continues to look for

opportunities, such as the EEOC’s e� orts here, to assert jurisdiction and

attempt to impose remedies.

https://ofs.tylerhost.net/nm






MoCk triAL CoACheS NeeDeD

Attorneys are needed at Animas High School and Lordsburg High School to provide legal expertise as coaches for the 2012 Gene Franchini High School Mock Trial program. The amount of time invested will be decided by the attorney and the teacher advisor, but teams usually meet at least once each week. State finals are March 23 and 24. The attorney/coach helps train team members in the finer points of presenting their cases before panels of judges and jurors. The case problem and rules were published in early October, so the teams have just begun their preparation. Information about the role and responsibilities of attorney coaches is available on the “Tips and Advice” pages in the mock trial section of the Center for Civic Values’ website at www.civicvalues.org. If you have a few hours a week to devote toward helping to provide an outstanding educational experience to New Mexico high school students or would like to know more, contact Stacy Tompkins at 505.764.9417, ext. 13. The 34th annual mock trial program is a co-sponsored activity of CCV, the State Bar and the UNM School of Law.

amended complaint, the EEOC added the Nation as a defendant under Rule 19.2

On remand, the district court again ruled against the EEOC, granting summary judgment to the defendants. Id. Among other things, the court found the Nation is a party that could not be joined in the case because any affirmative relief would be contrary to Title VII’s exemption of Indian Tribes from suit. Id. The court also found the Secretary of Interior had sufficient interest in the case to make it a necessary and indispensable party that could not be joined under Rule 19. Id.

On appeal, the 9th Circuit reversed the district court again and sent the case back. Id. at 1079. The Court, summoning up Peabody II, said that even though the “EEOC has no claim against the party it seeks to join [the Nation] and is not seeking any affirmative relief directly from that party… [j]oinder is necessary for the ‘sole purpose’ of effecting complete relief between the parties by ensuring that both Peabody and the Nation are bound to any judgment upholding or striking down the challenged lease provision.” Id.

The appellate court then considered the argument that under Rule 19 the suit could not proceed without joinder of the Secretary of the Interior as a necessary party and joinder of the Secretary was not feasible because the Secretary has sovereign immunity from being joined. Id. at 1077. The Court said Peabody was “between the proverbial rock and a hard place — comply with the injunction prohibiting the hiring preference policy or comply with the lease requiring it.” Id. at 1078. The Court explained the dilemma:

If the district court were to hold the Navajo employment preference violates Title VII and to award damages against Peabody, it would be profoundly unfair if Peabody could not seek indemnification from the Secretary. It would be similarly unfair if the district court were to grant an injunction requiring Peabody to disregard the preference provision, but leaving the Secretary free, despite the court’s holding, to insist that Peabody comply with it.

As Peabody could not seek indemnification from the Secretary of Interior, the Court determined that the EEOC’s claims for damages should be dismissed. Id. at 1084. The Court nevertheless ruled that the claim for injunctive relief may proceed without the Secretary. Id. at 1085. According to the Court, should the district court grant injunctive relief to the EEOC, a suit against the Secretary for “pro-spective relief in the form of an injunction or declaratory judgment” is enough to protect Peabody and the Nation. Id.

As this case demonstrates, the issue of reconciling Title VII and the NPEA is far from resolved. Furthermore, this case raises a troubling outlook for Indian tribes. The ultimate resolution may significantly narrow a tribe’s ability to maintain long-held employment prefer-ences. While it is encouraging from the perspective of tribes as employers that the damage claims will not be allowed to proceed, the fact that prospective, injunctive relief may still be available and the Secretary of the Interior will be interpled are problematic. As tribes continue involvement in significant economic enterprises, including gaming, the United States government continues to look for opportunities, such as the EEOC’s efforts here, to assert jurisdiction and attempt to impose remedies.

Endnotes 1Title VII prohibits employers from engaging in discrimina-tion on the basis of an individual’s race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a)(1) (2011). Indian Tribes are explicitly excluded from the definition of “employers” under Title VII. Id. § 2000e(b)(1). Moreover, to encourage employment of Native Americans, Title VII allows non-tribal employers to give preferential treatment to Indians under certain circumstances.42 U.S.C. § 2000e-2(i). 2Prior to Peabody II, Ninth Circuit case law held that a Navajo employment preference violated Title VII, but an individual claim-ant could not bring a suit for the violation without joining the Nation as an indispensable party, and the Nation had sovereign immunity from being joined. See Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 276 F.3d 1150 (9th Cir. 2002); Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117 (9th Cir. 1998).

About the AuthorsDanny W. Jarrett is the managing partner of the Albuquerque, New Mexico office of Jackson Lewis LLP. Jarrett has been recognized by the New Mexico Supreme Court’s Legal Specialization Board as a certified specialist in the field of labor and employment law since 2008. His practice focuses on counseling and representing employ-ers, government entities and Native American tribal organizations regarding labor and employment disputes.Andrea Robeda is an associate in the Albuquerque office of Jackson Lewis LLP and practices primarily in the area of employment litiga-tion. She represents management in employment cases in federal and state courts and before administrative agencies.

http://www.civicvalues.org


legal education January

4 Bench and Bar Substance Abuse and Other Misjudgments

2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

5–6 Estate Planning in 2012: Now That the Federal Tax Is a Dead Letter, Parts 1 and 2

2.0 G Albuquerque Center for Legal Education of

NMSBF 505-797-6020 www.nmbarcle.org

6 Compatibility of Legal and Judicial Ethics 2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

9 Arbitration: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

10 Dangers of Using “Units” in LLC Planning

1.0 G Albuquerque Center for Legal Education of

NMSBF 505-797-6020 www.nmbarcle.org

11 Admissible Evidence: Computer Forensics Investigation

2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

11 Judicial Ethics and Discipline: A Case Study

1.0 EP Albuquerque Paralegal Division 505-247-0411 or 505-222-9356 www.nmbar.org

12 Ethics on the Receipt and Release of Confidential Information

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

13 Bridging the Valuation Gap: “Earnouts” and Other Techniques When Buyer and Seller Can’t Agree on Price

1.0 G Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

13 Mediation: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

17 2011 Real Property Institute 6.3 G, 1.0 EP Video Replay Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

17 Nuts and Bolts of Chapter 11 Bankruptcy

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

17 Real Estate Finance in a World With Tight Credit and Less Leverage


17 Skeptically Determining the Limits of Expert Testimony and Efidence, Part 1

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

18 Recusal: A Hot New Legal Ethics Topic 2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

19 Ethics, Technology and Solo and Small Firm Practitioners


20 Rescission in Business Transactions: Techniques for Fixing Transactions Gone


24 Incentive Trusts: Approaches and Limits to Encouraging “Good” Behavior in Beneficiaries



2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

http://www.trtcle.com

http://www.nmbarcle.org



















legal education www.nmbar.org

2–3 2012 Ethics Update, Parts 1 and 2 2.0 EP Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

3 Arbitration: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

7 2011 Ethics/Professionalism: Conquering the Pitfalls of our Profession for a Healthy and Successful Career

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

7 2011 Fall Elder Law Institute 7.2 G Video Replay Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

7 2nd Annual ADR Institute 3.9 G, 2.5 EP Video Replay Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

FeBruary

7–8 Estate Planning for the Elderly, Parts 1 and 2


8 Compatibility of Legal and Judicial Ethics 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com



9 Ethics in Co-Counsel and Referral Relationships


10 Admissible Evidence: Computer Forensics Investigation


14 Compensation and Other Techniques for Getting Money Out of a Closely Held Business


16 Ethics Issues for Lawyers Supervising Other Lawyers and Paralegals


17 Mediation: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

17 2012 Sexual Harassment Update 1.0 G Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

21 Business Development 101: The Other Side of a Law Practice

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

26 Practical Ethics for Business Lawyers


27 Drafting Effective and Enforceable Promissory Notes


27 Electronically Stored Information: What’s Under Lock and Key


31 Choice of Entity for Service Businesses, Including Law Firms























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

effeCtive January 4, 2012

Writs oF certiorarias updated By the clerk oF the neW Mexico supreMe court

petitions For Writ oF certiorari Filed and pending:

Date Petition FiledNo. 33,353 Flemma v.

Halliburton Energy (COA 29,933) 12/15/11No. 33,352 State v. Hensley (COA 31,163) 12/14/11No. 33,349 State v. Griffin (COA 31,408) 12/14/11No. 33,351 Wakeland v. NM Dept.

of Workforce Solutions (COA 31,031) 12/13/11No. 33,348 State v. Valerio (COA 30,199) 12/12/11No. 33,346 State v. Rivera (COA 31,441) 12/12/11No. 33,341 State v. Ariel H. (COA 31,391) 12/12/11No. 33,345 Barnes v State (12-501) 12/9/11No. 33,342 State v. Urquizo (COA 30,337) 12/9/11No. 33,347 State v. Botello (COA 31,406) 12/7/11No. 33,339 State v. Alaya (COA 29,309) 12/7/11No. 33,335 State v. Flores (COA 31,366) 12/7/11No. 33,334 State v. Ariel H. (COA 31,319) 12/6/11No. 33,333 State v. Carter (COA 31,529) 12/6/11No. 33,332 Partida v.

Motor Vehicle Division (COA 31,460) 12/6/11 Response filed 12/20/11No. 33,331 Strausberg v.

Laurel Healthcare (COA 29,238) 12/6/11No. 33,275 Solsbury v. Liberty (COA 30,068) 12/6/11No. 33,330 Gallegos v. Bravo (12-501) 11/29/11No. 33,326 State v. Glass (COA 31,436) 12/2/11No. 33,325 State v. Soto (COA 30,047) 12/1/11No. 33,324 State v. Evans (COA 31,331) 12/1/11No. 33,323 State v. Greenwood (COA 29,959) 11/30/11No. 33,322 Resource Lighting v.

Rohde (COA 30,013) 11/30/11 Response filed 12/15/11 No. 33,320 State v. Sandoval (COA 28,437) 11/29/11No. 33,318 State v. Carruth (COA 31,228) 11/28/11No. 33,314 State v. Archuleta (COA 29,976) 11/23/11No. 33,312 State v. Eidson (COA 29,750) 11/23/11No. 33,309 State v. Marvin N. (COA 30,730) 11/21/11No. 33,308 State v. Mejia (COA 31,332) 11/21/11No. 33,307 State v. Calderon (COA 31,169) 11/18/11No. 33,306 State v. Alsop (COA 31,511) 11/18/11No. 33,305 State v. Flores (COA 31,432) 11/18/11No. 33,276 Miller v. State (12-501) 11/18/11 Response due 1/12/12 by extnNo. 33,304 State v. Hardy (COA 29,583) 11/17/11No. 33,300 Hernandez v. State (12-501) 11/15/11 Response due 1/12/12 by extnNo. 33,296 State v. Gutierrez (COA 29,997) 11/14/11No. 33,289 Spicknall v.

Rapid Temps, Inc. (COA 30,815) 11/4/11 Response filed 12/19/11No. 33,182 Moongate Water Co. v.

City of Las Cruces (COA 27,889) 10/19/11 Response filed 11/7/11

certiorari granted But not yet suBMitted to the court:

(Parties preparing briefs) Date Writ IssuedNo. 32,605 State v. Franco (COA 30,028) 10/18/10No. 32,742 State v. Martinez (COA 30,637) 1/31/11No. 32,804 State v. Servantez (COA 30,414) 2/7/11No. 32,895 State v. Gonzales (COA 30,541) 4/4/11No. 32,899 State v. Esparza (COA 28,911) 4/27/11No. 32,940 State v. Vest (COA 28,888) 5/3/11No. 32,943 State v. Hall (COA 29,138) 5/11/11No. 32,976 State v. Olson (COA 29,010) 5/24/11No. 33,001 State v. Rudy B. (COA 27,589) 6/8/11No. 33,008 State v. Lasky (COA 28,782) 6/8/11No. 33,014 State v. Crane (COA 29,470) 6/8/11No. 33,046 State v. Munoz (COA 30,837) 7/21/11No. 33,075 State v. Marchiondo (COA 30,029) 7/21/11No. 33,057 State v. Turrietta (COA 29,561) 7/26/11No. 33,077 State v. Gonzales (COA 28,700) 8/5/11No. 33,083 Martinez v. Dept.

of Transportation (COA 28,661) 8/5/11No. 33,133 Spencer v. Barber (COA 29,390) 9/9/11No. 33,143 State v. Owelicio (COA 30,461) 9/9/11No. 33,161 Duran v. Carisbrook, Inc. (COA 30,067) 9/9/11No. 33,154 State v. Carillo (COA 29,258) 9/12/11No. 33,135 Horne v. Los Alamos

National Security (COA 29,822) 9/14/11No. 33,136 State v. Bent (COA 29,227) 9/16/11No. 33,139 State v. Polson (COA 31,138) 9/20/11No. 33,134 Martinez v. Bustos (12-501) 9/22/11No. 33,184 State v. Guthrie (COA 29,863) 10/3/11No. 33,203 State v. Davis (COA 28,219) 10/4/11No. 33,166 Christus St. Vincent Reg.

Med. Ctr. v. Duarte-Afara (COA 30,343) 10/12/11No. 33,147 Prather v. Lyons (COA 29,812) 10/25/11No. 33,216 Flores v. Henderson (COA 31,295) 10/25/11No. 33,217 State v. Ramos (COA 29,514) 10/25/11No. 33,224 Bank of New York v.

Romero (COA 29,945) 10/25/11No. 33,226 State v. Olsson (COA 29,713) 10/27/11No. 33,257 State v. Boyse (COA 30,656/30,657) 11/4/11No. 33,265 State v. Garcia (COA 29,338) 11/17/11 No. 33,287 State v. Urioste (COA 30,110) 12/7/11

certiorari granted and suBMitted to the court:

(Submission = date of oral argument or briefs-only submission) Submission DateNo. 32,524 Republican Party v. Taxation

and Revenue Dept. (COA 28,292) 3/14/11No. 32,594 Smith v. Durden (COA 28,896) 3/15/11No. 32,505 Charley v. Franklin Corp. (COA 28,876) 3/22/11No. 32,534 Bustos v.

Hyundai Motor Co. (COA 28,240) 4/11/11


Writs oF certiorari http://nmsupremecourt.nmcourts.gov.

No. 32,570 City of Albuquerque v. Montoya (COA 28,846) 4/11/11

No. 32,695 Diamond v. Diamond (COA 30,009/30,135) 5/10/11

No. 32,690 Joey P. v. Alderman-Cave Milling & Grain Co. (COA 29,120) 5/11/11

No. 32,756 Lenscrafters, Inc. v. Kehoe (COA 28,145) 7/18/11

No. 32,291 State v. Torres (COA 29,603) 8/16/11No. 32,677 State v. Rivera (COA 29,317) 8/16/11No. 32,436 Estate of Gutierrez v.

Meteor Monument (COA 28,799) 8/17/11No. 32,589 State v. Ordunez (COA 28,297) 8/31/11No. 32,776 Sais v. New Mexico

Dept. of Corrections (COA 30,785) 9/12/11No. 32,707 Smith LLC v. Synergy

Operating LLC. (COA 28,248/28,263) 9/12/11No. 32,789 Chatterjee v. King (COA 29,823) 9/12/11No. 32,696 Herbison v. Chase Bank (COA 30,630) 9/13/11No. 32,483 State v. Jackson (COA 28,657) 9/28/11No. 32,697 State v. Amaya (COA 28,347) 9/28/11No. 32,868 Nunez v. Armstrong

General Contractors (COA 29,522) 10/11/11No. 32,844 Gonzalez v.

Performance Paint, Inc. (COA 29,629) 10/11/11No. 32,510 State v. Swick (COA 28,316) 10/12/11No. 32,713 Bounds v. D’Antonio (COA 28,860) 10/13/11No. 32,717 NM Farm and Livestock

Bureau v. D’Antonio (COA 28,860) 10/13/11No. 32,942 Schuster v. Taxation

and Revenue Dept. (COA 30,023) 11/14/11No. 32,704 Tri-State v. State Engineer (COA 27,802) 11/14/11No. 32,915 State v. Collier (COA 29,805) 11/15/11No. 32,944 Freedom C. v. Brian D. (COA 30,041) 11/15/11No. 32,430 State v. Muqqddin (COA 28,474) 11/16/11No. 32,632 State v.

Dominguez-Meraz (COA 30,382) 11/16/11No. 32,941 Titus v.

City of Albuquerque (COA 29,461) 11/16/11No. 32,800 State v. Spearman (COA 30,493) 11/30/11No. 32,532 Gutierrez v. Hatch (12-501) 12/12/11No. 33,011 Felts v. CLK

Management, Inc. (COA 29,702/30,142) 12/12/11

No. 33,013 Felts v. CLK Management, Inc. (COA 29,702/30,142) 12/12/11

No. 32,968 Sunnyland Farms, Inc. v. Central NM Electric (COA 28,807) 12/12/11

No. 32,985 Helena Chemical Co. v. Uribe (COA 29,567) 12/13/11

No. 32,987 Helena Chemical Co. v. Uribe (COA 29,567) 12/13/11

No. 32,937 SF Pacific Trust v. City of Albuquerque (COA 30,930) 12/14/11

No. 32,876 Gonzales v. State (12-501) 1/9/12No. 32,860 State v. Stevens (COA 29,357) 1/10/12No. 32,770 State v. Sneed (COA 30,467) 1/25/12No. 32,882 State v. Little (COA 29,731) 1/25/12No. 32,939 United Nuclear Corp. v.

Allstate Insurance Co. (COA 29,092) 1/30/12No. 33,070 Montoya v.

City of Albuquerque (COA 29,838) 1/30/12No. 33,023 State v. Gurule (COA 29,734) 1/30/12

petition For Writ oF certiorari denied:

No. 33,315 State v. Carlos H. (COA 31,368) 12/21/11No. 33,316 Marciano v. Strategic

Management Solutions (COA 30,193) 12/21/11No. 33,317 State v. Etsitty (COA 30,779) 12/21/11No. 33,321 Audette v. City of Truth

or Consequences (COA 30,988) 12/21/11No. 33,319 State v. Ramirez (COA 31,220) 12/21/11No. 33,261 State v. Mathis (COA 31,224) 12/7/11No. 33,208 Escudero v. State (12-501) 12/7/11No. 33,230 State ex rel. CYFD v.

Patrick O. (COA 31,042) 12/7/11No. 33,295 State v. Dickert (COA 29,720) 12/6/11No. 33,291 State v. Williams (COA 28,034) 12/6/11No. 33,313 Duarte v. Janecka (12-501) 12/6/11

Writ oF certiorari Quashed:

No. 32,360 State v. Figueroa (COA 28,798) 12/8/11

http://nmsupremecourt.nmcourts.gov


Published OPiniOns

Date Opinion FiledNo. 30417 3rd Jud Dist Dona Ana CV-09-596, FINANCIAL INDEMNITY v L CORDOVA (reverse and remand) 12/20/2011

unPublished OPiniOns

No. 31314 1st Jud Dist Santa Fe LR-10-8, CITY OF ESPANOLA v A VELARDE (dismiss) 12/16/2011No. 30441 12th Jud Dist Lincoln CR-92-28, STATE v J HERRERA (affirm) 12/19/2011No. 29972 9th Jud Dist Curry CR-08-696, STATE v D MURRELL (affirm) 12/20/2011No. 30489 2nd Jud Dist Bernalillo CR-09-1977, STATE v J ROBERTS (reverse and remand) 12/20/2011No. 30606 2nd Jud Dist Bernalillo CR-09-1976, STATE v N PEREA (reverse and remand) 12/20/2011No. 30609 AD AD ADM-10-09, PROTEST OF STEVE ORTIZ (reverse) 12/20/2011No. 31397 2nd Jud Dist Bernalillo CV-10-5645, R HEISE v ENCOMPASS INS (affirm) 12/20/2011No. 30523 AD AD ADM-10-08, TAX & REV v C MARTIN (reverse) 12/21/2011No. 30539 6th Jud Dist Luna CR-09-126, STATE v E RABER (reverse and remand) 12/21/2011No. 30956 1st Jud Dist Santa Fe ADM-10-19, TAX & REV v T CAPEHART (reverse) 12/21/2011No. 31197 2nd Jud Dist Bernalillo DM-06-2708, DV-07-378, M MINTEER v D SUDLOW (affirm) 12/21/2011No. 31377 1st Jud Dist Santa Fe CV-09-1477, UNIFUND v R BARNES (affirm) 12/21/2011No. 31402 2nd Jud Dist Bernalillo CR-08-604, STATE v D BORUNDA (reverse and remand) 12/21/2011No. 31562 1st Jud Dist Rio Arriba CV-10-194, A TAFOYA v D CLELAND (reverse) 12/21/2011

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

effeCtive DeCeMber 21, 2011

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

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


clerk’s certiFicatesFroM the neW Mexico supreMe court

Clerk’s CertifiCate DateD DeCember 14, 2011

Clerk’s CertifiCate Of admissiOn

On December 2, 2011:Troy James OliverOffice of the District Attorney417 Gidding, Suite 200Clovis, NM 88101575-769-2246575-769-3198 (fax)

Clerk’s CertifiCate Of reinstatement tO aCtive status

As of December 1, 2011:Nilda M. Pabon BalderstonPO Box 1992Roswell, NM 88202-1992

As of December 1, 2011:Michael S. Williams4 MacKenzie CourtLittleton, CO 80130

Clerk’s CertifiCate Of WithdraWal

Effective December 31, 2011:Kathleen M. Hall106 Chestnut Hill CoveAustin, TX 78734

in memOriam

As of November 10, 2011:Lucia Annalisa Gillard1640 N. Spyglass WayFlagstaff, AZ 8600

Clerk’s CertifiCate Of address and/Or

telePhOne Changes

Linda Helen BennettL. Helen Bennett PCPO Box 43051019 Second Street, NW (87102)Albuquerque, NM 87196-4305505-321-1461505-244-0532 (fax)[email protected]

John D. ClineLaw Office of John D. Cline235 Montgomery Street, Suite 1070San Francisco, CA 94104415-322-8319415-524-8265 (fax)[email protected]

Dean B. CrossThe Law Office of George “Dave” Giddens PC10400 Academy Road, NE, Suite 350Albuquerque, NM 87111505-271-1053505-271-4848 (fax)

C. Emery Cuddy, Jr.130 Verano LoopSanta Fe, NM [email protected]

Deborah M. DeMackLaw Offices of Deborah M. DeMack9400 Holly Avenue, NE, Bldg. 4Albuquerque, NM 87122505-471-3302815-550-2313 (fax)[email protected]

Mandy Kaye Waldrop DensonPO Box 1972Ruidoso, NM [email protected]

John F. Dietz6565 Americas Parkway, NE, Suite 200Albuquerque, NM 87110505-217-3516505-212-0021 (fax)[email protected]

Christopher T. ElmoreDoughty & West PA20 First Plaza, NW, Suite 412Albuquerque, NM 87102505-242-7070505-242-8707 (fax)[email protected]

MacDonnell GordonSommer, Udall, Sutin, Hardwick & Hyatt PAPO Box 1984200 West Marcy Street, Suite 129 (87501)Santa Fe, NM 87504-1984505-982-4676505-988-7029 (fax)[email protected]

Sarae T. Leuckel306 Garland StreetLakewood, CO [email protected]

Kristina Elena MartinezRothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu LLPPO Box 81801215 Paseo de Peralta (87501)Santa Fe, NM 87504-8180505-988-8004505-982-0307 (fax)[email protected]

William A. MartinezWilliam A. Martinez PC635 W. Corona Avenue, Suite 201Pueblo, CO 81004719-545-4519719-545-4423 (fax)[email protected]

Dalva Lon MoellenbergGallagher & Kennedy PA1233 Paseo de PeraltaSanta Fe, NM 87501505-989-7278505-983-8160 (fax)[email protected]

Sarah Marie MontoyaPO Box 266544 S. Second StreetRaton, NM [email protected]

Jennifer Obrey-EspinozaLaw Offices of Bruce S. McDonald211 Twelfth Street, NWAlbuquerque, NM 87102505-254-2854505-254-2853 (fax)[email protected]

Sandra Lizeth OlivaresU.S. Army Corps of Engineers7701 Telegraph RoadAlexandria, VA 22315703-428-7210703-428-7633 (fax)[email protected]

Johanna A. PickelJustitia Law Firm LLC733 S. Camino Del PuebloBernalillo, NM [email protected]

Malcolm L. Shannon, Jr.9 Sherwood DriveMethuen, MA [email protected]

Noel Anthony SunigaSuniga Law PLLC400 S. Zang Blvd., Suite 105Dallas, TX [email protected]

Mirna Raquel Torres122 West MadisonLovington, NM [email protected]

Charles H. Van GorderPO Box 61148Seattle, WA [email protected]

Ethan WatsonGerman & Associates LLC12836 Lomas Blvd., NE, Suite GAlbuquerque, NM 87112505-407-2293505-275-1283 (fax)[email protected]




















Kathleen Jo Gibson, 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

effeCtive January 4, 2012

Pending PrOPOsed rule Changes OPen fOr COmment

Comment Deadline5-208 Issuance of warrant for arrest

and summons 01/25/125-211 Search warrants 01/25/12

reCently aPPrOved rule Changes sinCe release Of 2011 nmra

Effective Date

rules oF civil procedure For the district courts

1-001 Scope of rules; definitions 02/06/121-004 Process 02/06/121-005.2 Electronic service and filing of pleadings

and other papers 11/21/111-005.2 Electronic service and filing of pleadings

and other papers 09/01/111-071.1 Statutory stream system adjudication suits;

service and joinder of water rights claimants; responses 06/08/11

1-071.2 Statutory stream system adjudication suits; stream system issue and expedited inter se proceedings 06/08/11

1-071.3 Statutory stream system adjudication suits; annual joint working session 06/08/11

1-071.4 Statutory stream system adjudication suits; ex parte contacts; general problems of administration 06/08/11

1-071.5 Statutory stream system adjudication suits; excusal or recusal of a water judge 06/08/11

1-023 Class actions 05/11/111-077 Appeals pursuant to Unemployment Compensation Law 04/18/111-079 Public inspection and sealing

of court records 02/07/11

rules oF civil procedure For the Magistrate courts

2-112 Public inspection and sealing of court records 02/07/11

rules oF civil procedure For the Metropolitan courts

3-105 Assignment and designation of judges 05/27/113-701 Appeal from metropolitan court

on the record 05/27/113-112 Public inspection and sealing


civil ForMs

4-831 Petition for writ of certiorari in appeal pursuant to Unemployment Compensation Law 04/18/11

4-832 Writ of certiorari in appeal pursuant to Unemployment Compensation Law 04/18/11

4-222 Application for free process and affidavit of indigency 02/09/11

4-223 Order for free process 02/09/114-224 Attorney’s certificate supporting indigency

and free process 02/09/11

rules oF criMinal procedure For the district courts

5-502 Disclosure by the defendant 02/06/125-805 Probation; violation 11/01/115-123 Public inspection and sealing

of court records 02/07/115-805 Probation; violation 01/31/115-604 Time of commencement of trial for cases

of concurrent trial jurisdiction originally filed in the magistrate, metropolitan, or municipal court 03/23/11

rules oF criMinal procedure For the Magistrate courts

6-503 Disposition without hearing 01/31/126-105 Assignment and designation of judges 12/02/116-507 Insanity or incompetency; transfer to

district court 12/02/116-701 Judgment 03/25/116-114 Public inspection and sealing


rules oF criMinal procedure For the Metropolitan courts

7-503 Disposition without hearing 01/31/127-701 Judgment 03/25/117-113 Public inspection and sealing


rules oF procedure For the Municipal courts

8-503 Disposition without hearing 01/31/128-507 Insanity or incompetency; transfer to

district court 12/02/118-701 Judgment 03/25/118-112 Public inspection and sealing


criMinal ForMs

9-104B Appearance, plea and waiver 01/31/12

children’s court rules and ForMs

10-411 Affidavit for Search Warrant 01/16/12 10-412 Search Warrant 01/16/1210-223A Physical restraints in the courtroom

[Suspended until further order of the court] 09/30/1110-426 Motion for use of physical restraints [Suspended until further order of the court] 09/30/11 10-427 Order on physical restraints [Suspended until further order of the court] 09/30/1110-162 Peremptory challenge to a children’s court

judge; recusal; procedure for exercising; disability 09/09/11


rule-Making activity http://nmsupremecourt.nmcourts.gov.

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.

Form 10-496A Order for evaluation of competency to stand trial 09/09/11

Form 10-496B Order for diagnostic evaluation 09/09/11Form 10-496C Order for pre-dispositional diagnostic

evaluation 09/09/11Form 10-496D Order for evaluation of amenability to

treatment for youthful offender (requested by defense counsel) 09/09/11

Form 10-496E Ex parte order for forensic evaluation 09/09/1110-166 Public inspection and sealing

of court records 02/07/1110-409 Affidavit for Arrest Warrant 02/14/1110-410 Arrest Warrant 02/14/1110-412A Bench warrant 02/14/1110-137 Continuing duty to disclose;

failure to comply 01/31/1110-312 Filing of petition; amendment of petition;

appointment of guardian ad litem or attorney 01/31/11

rules oF evidence

11-804 Hearsay exceptions; declarant unavailability 01/31/11

rules oF appellate procedure

12-405 Opinions 09/12/1112-215 Brief of an amicus curiae 06/28/1112-306 Number of copies of papers 06/28/1112-302 Appearance, withdrawal or substitution

of attorneys 05/16/1112-314 Public inspection and sealing

of court records 02/07/1112-210 Calendar assignments 02/09/1112-309 Motions 02/09/11

uJi civil

13-110 Conduct of jurors 03/21/1113-305 Causation (Proximate cause) 03/21/1113-306 Independent intervening cause 03/21/1113-1424 Causation; products liability 03/21/11 3-1424A Independent intervening cause;

products liability 03/21/11

uJi criMinal

14-945 Criminal sexual penetration of a 13-to-18 year old in the second degree; use of coercion by person in position of authority; essential elements 11/18/11

14-972 Aggravated criminal sexual penetration in the first degree; child under thirteen; essential elements 11/18/11

14-2241 Tampering with evidence; essential elements 11/18/1114-5101 Insanity; jury procedure 04/25/1114-101 Explanation of trial procedures 03/25/1114-114 Recess instructions 03/25/1114-2215 Resisting; evading or obstructing an officer,

essential elements 03/21/1114-4511 “Operating” or driving a motor vehicle;

defined 03/21/1114-4512 Actual physical control; defined 03/21/11

rules governing adMissions to the Bar

15-301.2 Legal services provider limited law license 01/01/1215-205 Administration and grading 09/01/1115-207 Unsuccessful applicants; right of inspection 09/01/11

rules governing discipline

17-309 Formal charges; designation of hearing officer or committee 06/01/11

17-105 Disciplinary counsel 03/28/11

rules For MiniMuM continuing legal education

18-201 Minimum educational requirements 05/01/1118-203 Accreditation; course approval;

provider reporting 05/01/1118-204 Earning credits; credit types 05/01/11

code oF Judicial conduct

21-100 et seq Code compiled in four canons, as Rules 21-100 to 21-406 NMRA 01/01/12

rules governing the recording oF Judicial proceedings

22-101 Scope; definitions; title 01/27/1222-203 Application; qualifications; renewal

of certification 01/27/1222-501 Examination standards 01/27/12

supreMe court general rules

23-114 Free process in civil cases 02/09/1123-110 Commission on Professionalism 04/06/11

rules governing the neW Mexico Bar

24-109 Trust accounts; special requirements for IOLTA trust accounts 05/17/11

24-110 “Bridge the Gap: Transitioning into the Profession” program 04/06/11

rules For revieW oF Jsc27-104 Filing and service 05/04/1127-106 Form of papers 05/04/11

local rules For the First Judicial district

LR1-312 Electronic filing authorized 10/03/11

local rules For the second Judicial district

LR2-303 Electronic filing authorized 10/31/11

local rules For the eleventh Judicial district

LR11-120 Service by electronic transmission; water rights adjudication proceedings 02/21/11

local rules For the thirteenth Judicial district

LR13-411 Electronic filing authorized 09/30/11LR13-411 Electronic filing and service pilot project 06/13/11



http://www.nmcompcomm.us


rules/ordersFrom the New Mexico Supreme Court

http://www.nmcompcomm.us/rules/ordersFrom the New Mexico Supreme Court


ProPoseD revisions to the rules of Criminal ProCeDure for the DistriCt Courts

The Rules of Criminal Procedure for the District Courts Com-mittee has recommended proposed amendments to the Rules of Criminal Procedure for the District Courts for the Supreme Court’s consideration. If you would like to comment on the proposed amendments set forth below before they are submitted to the Court for final consideration, you may do so by either submitting a comment electronically through the Supreme Court’s web site at http://nmsupremecourt.nmcourts.gov/ or sending your written com-ments to:

Joey D. Moya, Chief ClerkNew Mexico Supreme CourtP.O. Box 848Santa Fe, New Mexico 87504-0848

Your comments must be received on or before Jan. 25, 2012, to be considered by the Court. Please note that any submitted comments may be posted on the Supreme Court’s web site for public viewing. ________________________________5-208. Issuance of warrant for arrest and summons. A. Time. Upon the docketing of any criminal action the court may issue a summons or arrest warrant. B. Form for warrant. The warrant shall be signed by the court and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged. It shall command that the defendant be arrested and brought before the court. C. Form for summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the court at a stated time and place. A summons or arrest warrant shall be substantially in the form approved by the court administrator. D. Basis for warrant. The court may issue a warrant for ar-rest upon an indictment or a sworn written statement of the facts showing probable cause for issuance of a warrant. The showing of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. Before ruling on a request for a warrant the court may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such additional evidence shall be reduced to writing and supported by oath or affirmation. The court also may permit a request for an arrest warrant by any method authorized by Paragraph F of Rule 5-211 for search warrants and may issue an arrest warrant remotely provided the requirements of Paragraph F of Rule 5-211 and this rule are met.[As amended by Supreme Court Order No. _________, effective _____________.] Committee commentary. — When a criminal action is docketed in the magistrate court by the filing of a complaint, Rule 6-204, substantially identical to this rule, will govern the procedure. Paragraph A of Rule 6-204 adds to Paragraph A of

this rule by indicating a preference for the use of summons when practicable. See also, 31-1-6 NMSA 1978. Paragraphs B and C of this rule were derived from Rule 4(c) of the Federal Rules of Criminal Procedure. See 62 F.R.D. 271-72 (1974). Paragraph D of this rule requires a written showing of probable cause before an arrest warrant may be issued. The constitutional basis for this requirement is Section 10 of Article 2 of the New Mexico Constitution, although that provision does not expressly mention arrest warrants. Cf. State v. Gibby, 78 N.M. 414, 432 P.2d 258 (1967). See also, commentary to Rule 5-209. Paragraph D of this rule codified case law allowing the issu-ance of a warrant on probable cause based on hearsay evidence. This provision was taken from Rule 4(b) of the Federal Rules of Criminal Procedure. See 48 F.R.D. 553, 558-60 (1970) and 62 F.R.D. 271-72 (1974). Neither the proposed federal rule nor this rule attempts to establish what constitutes probable cause based on hearsay as that determination can only be made on a case by case basis, taking into account the unlimited variation and sources of information and the varying reliability of the information re-ceived by the affiant from others. 62 F.R.D. 271, 273-74 (1974). The fact that the information may involve double hearsay does not mean that the affidavit fails to provide probable cause. State v. Alderete, 88 N.M. 14, 536 P.2d 278 (Ct. App. 1975). Paragraph E was added in 2011 to permit alternate methods for requesting and issuing arrest warrants. See Rule 5-211(F) and the related committee commentary for more information. [Commentary, as amended by Supreme Court Order No. ___________, effective ____________.]________________________________5-211. Search warrants. A. Issuance. A warrant may be issued by the court to search for and seize any: (1) property which has been obtained or is possessed in a manner which constitutes a criminal offense; (2) property designed or intended for use or which is or has been used as the means of committing a criminal offense; (3) property which would be material evidence in a criminal prosecution; or (4) person for whose arrest there is probable cause or who is unlawfully restrained. A warrant shall issue only on a sworn written statement of the facts showing probable cause for issuing the warrant. B. Contents. A search warrant shall be executed by a full-time salaried state or county law enforcement officer, a municipal police officer, a campus security officer, an Indian tribal or pueblo law enforcement officer or a civil officer of the United States authorized to enforce or assist in enforcing any federal law. The warrant shall contain or have attached the sworn written statement of facts showing probable cause for its issuance and the name of any person whose sworn written statement has been taken in support of the warrant. A search warrant shall direct that it be served between the hours of 6:00 a.m. and 10:00 p.m., according to local time, unless the issuing judge, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at any time. C. Execution. A search warrant shall be executed within ten (10) days after the date of issuance. The officer seizing property

http://www.nmcompcomm.us/


http://nmsupremecourt.nmcourts.gov/

http://nmsupremecourt.nmcourts.gov/



http://www.nmcompcomm.us/under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the affidavit for search warrant, and the search warrant and a copy of the inventory of the property taken or shall leave the copies of the affidavit for search warrant, the search warrant and inventory at the place from which the property was taken. D. Return. The return of the warrant, or any duplicate original, shall be made promptly after execution of the warrant. The return shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be signed by the officer and the person in whose presence the inventory was taken. The court shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant. E. Probable cause. As used in this rule, “probable cause” shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for be-lieving the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. F. Methods for requesting warrant. A request for a search warrant may be made using any of the following methods: (1) by affidavit substantially in the form approved by the Supreme Court with a proposed search warrant attached. Before ruling on a request for a warrant the [court] judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses [he] the affiant may produce, provided that such additional evidence shall be reduced to writing, sup-ported by oath or affirmation and served with the warrant; (2) by oral testimony in the presence of the judge provided that the testimony is reduced to writing, supported by oath or affirmation, and served with the warrant; or (3) by transmission of the affidavit and proposed search warrant required under Subparagraph (1) of this paragraph to the judge by telephone, facsimile, electronic mail, or other reliable electronic means provided the following conditions are met: (a) the judge administers an oath or affirmation to the affiant and any witnesses the affiant may produce remotely by means designed to ensure that the judge confirms the identity of the affiant and any witnesses the affiant may produce; (b) the oath or affirmation, the sworn statement of facts, and any additional testimony taken in support of the warrant during the conversation shall be reduced to writing and served with the warrant; and (c) if the request for a warrant is transmitted by telephone and the judge decides to issue a warrant (i) the affiant shall read the contents of the proposed warrant to the judge, and the judge may enter the con-tents verbatim, or may modify the contents as the judge deems appropriate, into a writing substantially in the form approved by the Supreme Court; (ii) the judge shall sign the original warrant, enter on its face the exact time and date it is issued, transmit a copy by reliable electronic means to the affiant; and file the original with the court; and (iii) upon the affiant’s acknowledgment of receipt by telephone or other appropriate means, the electronically trans-

mitted warrant shall serve as a duplicate original and the affiant is authorized, but not required, to write the words “duplicate original” on the transmitted copy; or (d) if the request for a warrant is transmitted by facsimile, electronic mail, or other reliable electronic means and the judge decides to issue a warrant (i) the judge may adopt the contents verbatim, or may modify the contents as the judge deems appropriate, provided the warrant is substantially in the form approved by the Supreme Court, (ii) the judge shall sign the original warrant, enter on its face the exact time and date it is issued, transmit a copy by reliable electronic means to the affiant; and file the original with the court; and (iii) upon the affiant’s acknowledgment of receipt by telephone or other appropriate means, the electronically trans-mitted warrant shall serve as a duplicate original and the affiant is authorized, but not required, to write the words “duplicate original” on the transmitted copy. [As amended, effective October 1, 1974 and July 1, 1980, as amended by Supreme Court Order No. ____________, effective _______________] Committee commentary. — This rule is patterned after Rule 41 of the Federal Rules of Criminal Procedure. For other court rules governing issuance, etc., of search war-rants by the magistrate court, see Rule 6-208, Rule 7-208, and Rule 8-208. These rules are substantially identical and are based upon the New Mexico constitutional requirements. See N.M. Const., Art. 2, § 10. The court rules replaced the former search warrant statute, repealed in 1972. See N.M. Laws 1967, ch. 245, §§ 1 and 2, formerly compiled as 41-18-1 and 41-18-2, 1953 Comp. “Property” in Paragraph A of this rule is defined in Rule 41(h) of the Federal Rules of Criminal Procedure “to include documents, books, papers and any other tangible objects.” The committee is of the opinion that this would include such things as blood, fingerprints, and handwriting samples. See Sanchez v. Attorney General, 93 N.M. 210, 598 P.2d 1170 (Ct. App. 1979). As amended in 1979, this rule provides a procedure for the obtaining of a search warrant to conduct a search of premises for a person even when a warrant is not required. As stated in the advisory committee note to Rule 41 of the Federal Rules of Criminal Procedure:

That part of the amendment which authorizes is-suance of a search warrant to search for a person unlawfully restrained is consistent with ALI Model Code of Pre-Arraignment Procedure § SS 210.3(1)(d) (Proposed Official Draft, 1975), which specifies that a search warrant may issue to search for ‘an individual * * * who is unlawfully held in confine-ment or other restraint.’

As noted in the Commentary thereto, id. at p. 507: Ordinarily such persons will be held against their will and in that case the persons are, of course, not subject to ‘seizure.’ But they are, in a sense, ‘evi-dence’ of crime, and the use of search warrants for these purposes presents no conceptual difficulties.

In United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976), the Court . . . alluded to “the still unsettled question” of whether, absent exigent circumstances, officers acting without a warrant may enter private premises to make an arrest. Some courts have indicated that probable cause alone




http://www.nmcompcomm.us/ordinarily is sufficient to support an arrest entry, United States v. Fernandez, 480 F.2d 726 (2d Cir. 1973); United States ex rel. Wright v. Woods, 432 F.2d 1143 (7th Cir. 1970). There exists some authority, however, that except under exigent circumstances a warrant is required to enter the defendant’s own premises, United States v. Calhoun, 542 F.2d 1094 (9th Cir. 1976); United States v. Lindsay, 506 F.2d 166 (D.C. Cir. 1974); Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970), or, at least to enter the premises of a third party, Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974); Fisher v. Volz, 486 F.2d 333 (3d Cir. 1974); Huotari v. Vanderport, 380 F. Supp. 645 (D. Minn. 1974). A warrant must be served between the hours of 6:00 a.m. and 10:00 p.m. unless for reasonable cause shown the issuing judge authorizes the execution at any time. The time periods designated were taken from the definition of “day time” in Rule 41(h) of the Federal Rules of Criminal Procedure. Paragraph E of this rule was derived in part from Rule 41(c) of the Federal Rules of Procedure. On the use of hearsay evidence to establish probable cause, see State v. Perea, 85 N.M. 505, 513 P.2d 1287 (Ct. App. 1973). See also, 48 F.R.D. 553, 630 (1970). Uncorroborated information given by an unknown informant to support an affidavit for probable cause may be found to be reliable if the information is personal to the informant and other information given by the informant has been corroborated by information supplied by a reliable confidential informant. State v. Turkal, 93 N.M. 248, 599 P.2d 1045 (1979). The tests for evaluating the supporting affidavit for probable cause were set forth in State v. Perea, supra: (1) technical require-ments of elaborate specificity are not required; (2) any inferences to be drawn from statements of the affiant must be drawn by the judge and not the police officer; (3) affidavits are tested by less rigorous standards than those governing the admissibility of evidence at trial; and (4) where affiant is relying on an informant, the affidavit must set forth some of the underlying circumstances supporting the affiant’s conclusion that the information is cred-ible or reliable. Only a probability of criminal conduct need be established and common sense should control the magistrate’s determination of probable cause, which should be shown great deference by the reviewing court. State v. Bowers, 87 N.M. 74, 529 P.2d 300 (Ct. App. 1974). See also, State v. Alderete, 88 N.M. 14, 536 P.2d 278 (Ct. App. 1975). As in the federal rule, any additional evidence received by the court when the affiant appears personally must be made a part of the facts showing probable cause. In addition, under this rule, the additional evidence must be reduced to writing and sworn to in

order to comply with the constitutional requirement of a “written showing of probable cause.” For cases showing examples of the sufficiency of descriptions in warrants, see State v. Ferrari, 80 N.M. 714, 460 P.2d 244 (1969) (instrumentalities of the crime in a murder case); State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct. App. 1970) (sufficiency of the description of the place to be searched); State v. Quintana, 87 N.M. 414, 534 P.2d 1126 (Ct. App. 1975), cert. denied, 88 N.M. 29, 536 P.2d 1084, cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975) (sufficiency of description of controlled substances). Absent a showing of prejudice, defects in the return of service will not invalidate the warrant. See State v. Wise, 90 N.M. 659, 567 P.2d 970 (Ct. App.), cert. denied, 91 N.M. 4, 569 P.2d 414 (1977); State v. Baca, 87 N.M. 12, 528 P.2d 656 (Ct. App.), cert. denied, 87 N.M. 5, 528 P.2d 649 (1974). In 2011, Paragraph F was added to permit multiple methods for requesting a warrant. Beyond the traditional in-person sub-mission of a written affidavit and proposed warrant, Paragraph F permits requesting a search warrant through oral testimony in the presence of the judge or by submission of the affidavit and proposed search warrant over the telephone, by fax, by email, or by other electronic means. A judge is not required to accept requests for warrants by alternative methods, but, if the judge decides to do so, the judge must ensure that any oath or affirma-tion administered by remote means is done in a way that allows the judge to confirm the identity of the affiant. For example, the oath or affirmation may be accomplished by audio-visual means that allows the judge to see the person to whom the oath or af-firmation is administered. Or the oath or affirmation may be ac-complished by telephone or other audio method if done in a way that allows the judge to confirm identity, such as by having the call made through a known law enforcement telephone number with a verifiable badge number given by the officer requesting the warrant. See, e.g., Rule 11-901(A) NMRA. If the judge accepts a request for warrant by remote means, the judge must ensure that the sworn statement of facts offered in support of the warrant is reduced to writing to be served along with the warrant. And if the judge issues the warrant by remote means, the judge must file the original warrant with the court and authorize the affiant to write the words “duplicate original” on the remotely transmitted copy for service.[Commentary, as amended by Supreme Court Order No. ______, effective ___________.]________________________________



advance opinionsFroM the neW Mexico supreMe court and court oF appeals



Opinion Number: 2011-NMSC-043

Topic Index:Constitutional Law: New Mexico Constitution, General;

and Separation of PowersGovernment: Appropriations; and Executive Branch

Remedies: Writ of Mandamus; and Writ of Prohibition

STATE OF NEW MEXICO, ex rel., HON. JOHN ARTHUR SMITH,HON. MICHAEL S. SANCHEZ, HON. HENRY KIKI SAAVEDRA,

HON. LUCIANO “LUCKY” VARELA, members of the New Mexico Legislature

and citizens of New Mexico,Petitioners,

versusHON. SUSANA MARTINEZ, Governor of the State of New Mexico,

HON. DIANNA J. DURAN, Secretary of State of New Mexico,Respondents,

andOFFICE OF THE ATTORNEY GENERAL,

Intervenor.No. 33,029 (filed: November 21, 2011)

ORIGINAL PROCEEDING

opinion

petra JiMenez Maes, Justice

{1} In the General Appropriation Act of 2011, the Legislature appropriated $150,000 to the Department of Finance and Administration “[f]or disbursement to the New Mexico mortgage finance authority to carry out the responsibilities,

SHANE YOUTZGABRIELLE VALDEZ

YOUTZ & VALDEZ, P.C.Albuquerque, New Mexico

for Petitioners

JESSICA HERNANDEZJENNIFER L. PADGETT

MATTHEW J. STACKPOLEGREGORY S. SHAFFERSanta Fe, New Mexico

for RespondentsGARY K. KING

Attorney GeneralSCOTT FUqUA

Assistant Attorney GeneralMARK REYNOLDS

Assistant Attorney GeneralSanta Fe, New Mexico

for Intervenor

duties and provisions of the regional hous-ing law.” On April 8, 2011, the Governor signed the General Appropriation Act of 2011; however, the Governor struck the “1” from the $150,000 appropriated by the Legislature to the Department of Finance and Administration, thereby changing or “scaling” the appropriation down to $50,000. In House Executive Message No. 31, the Governor stated that she ve-

toed the “1” because, although she agreed with the Legislature that regional housing oversight was a necessary expenditure, she “disapproved of the excessive part of the appropriation,” evidently the vetoed $100,000.{2} Citizens of the State of New Mexico, electors, taxpayers, and members of the New Mexico Legislature (Petitioners) subsequently filed a Verified Petition for Writ of Mandamus/Prohibition. See N.M. Const. art. VI, § 3 (“The supreme court shall have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions . . . .”). Petitioners sought a writ restoring the full appropriation, claiming it was an uncon-stitutional application of the Governor’s partial veto authority. This Court heard oral argument and granted Petitioner’s Writ of Mandamus/Prohibition. This Court ordered that the Governor’s “partial veto that would allow scaling of appropriations [was] invalid and unconstitutional” and restored the $150,000 Legislative appro-priation. We now issue this Opinion to further explain the order of this Court.DISCUSSION{3} Article III, Section 1 of the New Mex-ico Constitution sets forth the separation-of-powers doctrine for state government. There are three distinct departments of government: legislative, executive, and judicial. N.M. Const. art. III, § 1 (“[N]o person or collection of persons charged with the exercise of powers properly be-longing to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted.”).{4} Under Article IV of the New Mexico Constitution, the Legislature and the Ex-ecutive are given separate roles in respect to appropriations. The New Mexico Con-stitution vests the power to appropriate money exclusively with the Legislature. N.M. Const. art. IV, § 16. Our Constitu-tion further requires that a law making an appropriation must “distinctly specify the sum appropriated and the object to which it is to be applied,” with money being “paid out of the treasury only upon appropriations made by the legislature.” N.M. Const. art. IV, § 30. The Governor has the power to “approve or disapprove any part or parts, item or items, of any bill



appropriating money, and such parts or items approved shall become a law, and such as are disapproved shall be void un-less passed over his [or her] veto.” N.M. Const. art. IV, § 22.THE GOVERNOR’S PARTIAL VETO AUTHORITY DOES NOT ALLOW THE POWER TO REDUCE OR “SCALE” AN APPROPRIATION{5} The Governor argues that she properly executed her partial veto power because “New Mexic[o] governors have the abil-ity to veto something smaller and more discrete than ‘items,’” and that “[o]ne hun-dred thousand is a ‘part’ of $150,000.00.” The Governor relies on State ex rel. Coll v. Carruthers for the premise that “New Mexico differs from most other states with item-veto provisions because it allows the broadest possible veto authority by addi-tionally providing authority to veto ‘parts’, not only ‘items.’” 107 N.M. 439, 442, 759 P.2d 1380, 1383 (1988) (per curiam).{6} This Court’s partial veto decisions do not answer the question raised in this case, but do contain principles about the line-item veto. In State ex rel. Dickson v. Saiz, this Court held that the Governor’s partial veto power is a quasi-legislative function, which is an exception to our separation of powers doctrine. 62 N.M. 227, 236, 308 P.2d 205, 211 (1957) (per curiam) (“Our Constitution does not, necessarily, foreclose the exercise by one department of the state of powers of another but contemplates in unmistakable language that there are certain instances where the overlapping of power exists. Indeed, when the Governor exercises his [or her] right of partial veto he [or she] is exercising a quasi-legislative function.”). In Dickson, the Governor was presented with House Bill No. 155 and struck all language that would have made it possible to have saloons and bars open on Sunday. 62 N.M. at 231, 238, 308 P.2d at 208, 212. This Court held that the Governor was acting strictly within his quasi-legislative capacity because there was “no reducing, nor any scaling, of appropriations.” Id. at 238, 308 P.2d at 212.{7} In State ex rel. Sego v. Kirkpatrick, we held that the Governor’s power to impose a partial veto is not an absolute power. 86 N.M. 359, 362, 524 P.2d 975, 978 (1974) (“The power of veto, like all powers constitutionally conferred upon a governmental officer or agency, is not absolute and may not be exer-cised without any restraint or limitation whatsoever. The very concept of such absolute and unrestrained power is in-

consistent with the concept of ‘checks and balances’ . . . .”). The respondents in Sego, as in this case, relied on the dictionary definitions of “item” and “part” to support their argument that a part is inherently smaller than an item. 86 N.M. at 364, 524 P.2d at 980. This Court concluded, however, that there was not “any significant distinction between or among [the terms item and part].” Id. (internal quotation marks omitted) (quoting State ex rel. Turner v. Iowa State Highway Comm’n, 186 N.W.2d 141, 149 (Iowa 1971)). The purpose of including the terms “part or parts” and “item or items” in our Constitution was to extend the partial veto power beyond other states’ constitutions that limit the partial veto to items of appropriation and general appropriation bills. Id. at 365, 524 P.2d at 981. This Court interpreted the Governor’s partial veto power under Article IV, Section 22 to apply to “(1) bills of general legislation, which contain incidental items of appropriation, as well as general appropriation bills, and (2) to ‘items or parts’ thereof in addition to ‘items of appropriation.’” Sego, 86 N.M. at 364-65, 524 P.2d at 980-81. Thus, so long as the bill is a “bill appropriating money,” the Governor may veto any part or item thereof, and not just a part actually appropriating money.{8} The Governor is correct that our Con-stitution allows the broadest possible veto authority by providing authority to veto “parts,” not only “items.” In Coll, how-ever, this Court recognized the limitation of this veto power by clarifying that the “power of partial veto is only a negative power to disapprove; it is not the power to enact or create new legislation by se-lective deletions.” 107 N.M. at 442, 759 P.2d at 1383. Our case law emphasizes the limitation of the Governor’s partial veto power by requiring that the veto eliminate the whole of an item or part and prohibit-ing the striking of individual words that result in legislation inconsistent with the Legislature’s intent. Sego, 86 N.M. at 365, 524 P.2d at 981 (“[A] partial veto must be so exercised that it eliminates or destroys the whole of an item or part and does not distort the legislative intent, and in effect create legislation inconsistent with that enacted by the Legislature, by the care-ful striking of words, phrases, clauses or sentences.” (emphasis added)). By strik-ing a single numerical digit, the Governor did not eliminate the whole of the item; she distorted the Legislature’s intent to appropriate $150,000 to the Department

of Finance and Administration for the mortgage finance authority. There is no authority to scale back: the Governor may strike the whole of the appropriation or leave it intact; she may not conceive her own appropriation.{9} The Governor cites numerous out-of-state cases to support her position that the partial veto power includes the power to scale down an appropriation. The cases cited by the Governor interpret other states’ constitutional partial veto powers, none of which are analogous to our constitutional partial veto power. We need not rely on these cited cases because, as discussed above, our case law suffi-ciently addresses the Governor’s partial veto authority, including the Governor’s lack of authority to scale down an appro-priation. See State ex rel. Holmes v. State Bd. of Fin., 69 N.M. 430, 434, 367 P.2d 925, 928 (1961) (“[I]t is generally held that the governor has no power to scale down an item in an appropriation act.”). The Governor also argues that former New Mexico governors have used their partial veto authority to reduce an appropriation without being challenged. While it is true that legislative acquiescence to actions by the governor may indicate that the gover-nor’s action is proper, see State ex rel. Lee v. Hartman, 69 N.M. 419, 427, 367 P.2d 918, 924 (1961), it remains the role of this Court to determine the constitutionality of an action.CONCLUSION{10} The Governor’s partial veto that would allow scaling of appropriations is invalid and unconstitutional. The Gov-ernor violated the separation of powers doctrine when she struck the “1” from the $150,000 appropriation to the De-partment of Finance and Administration “[f]or disbursement to the New Mexico mortgage finance authority to carry out the responsibilities, duties and provisions of the regional housing law.” Accordingly, a writ of mandamus has been issued order-ing the reinstatement of the Legislature’s $150,000 appropriation.{11} IT IS SO ORDERED. PETRA JIMENEZ MAES,

Justice

WE CONCUR:PATRICIO M. SERNA, JusticeRICHARD C. BOSSON, JusticeEDWARD L. CHÁVEZ, JusticeRODERICK T. KENNEDY, Court of Appeals Judge(sitting by designation)



Opinion Number: 2011-NMSC-044

Topic Index:Criminal Procedure: Deposition and Discovery;

Expert Witness; Prejudice; and Sanctions

STATE OF NEW MEXICO,Plaintiff-Petitioner,

versusCURTIS HARPER,

Defendant-Respondent.

Consolidated With:

No. 32,402

STATE OF NEW MEXICO,Plaintiff-Respondent,

versusCURTIS HARPER,

Defendant-Petitioner.No. 32,388 (filed: November 22, 2011)

ORIGINAL PROCEEDING ON CERTIORARIMICHAEL J. KAVANAUGH, District Judge

opinion

edWard l. chávez, Justice

{1} Defendant Curtis Harper was indicted on fifteen counts of criminal sexual pen-etration of a child under the age of thirteen. During a docket call in December 2006, the district court learned for the first time that not all witness interviews had been conducted, including those of the alleged victim and the doctor who examined her. The district court rescheduled the trial for February 19, 2007, and verbally instructed the attorneys to complete the witness interviews by January 19, 2007. During a subsequent hearing, because neither the victim nor the doctor were interviewed before the court-imposed deadline, the district court prohibited the State from call-ing either of them as witnesses. The State agreed with Harper that it could not make a prima facie case against him if these two

GARY K. KINGAttorney General

JACqUELINE R. MEDINAAssistant Attorney General

Santa Fe, New Mexicofor State of New Mexico

JACqUELINE L. COOPERActing Chief Public DefenderCARLOS RUIZ DE LA TORRE

Assistant Appellate DefenderSanta Fe, New Mexico

for Curtis Harper

witnesses were not allowed to testify.{2} The State appealed the district court’s exclusion of the two witnesses. The Court of Appeals unanimously reversed the dis-trict court regarding the victim, concluding that the State made efforts to comply with the district court’s request and Harper was not prejudiced by the State’s failure to make the victim available for an interview within the time frame established by the district court. Among other reasons, the Court of Appeals noted that this Court had granted Harper’s Rule 5-604 NMRA petition for an extension of time to try the case until June 24, 2007. A majority of the Court of Appeals affirmed the exclusion of the doctor because, although Harper was not prejudiced, the State intentionally did not comply with the district court’s deadline due to the doctor’s demand for payment in advance of the interview. Because exclusion of witnesses requires an intentional violation of a court order,

prejudice to the opposing party, and con-sideration of less severe sanctions, we affirm the Court of Appeals with respect to the victim and reverse with respect to the doctor. Therefore, we reverse the dis-trict court’s order precluding the victim and the doctor from testifying at trial and remand for proceedings consistent with this Opinion.PROCEDURAL HISTORY{3} On November 22, 2004, Harper was indicted on fifteen counts of criminal sexual penetration of a child under the age of thirteen, a first-degree felony. After ini-tially being represented by private defense counsel, Harper secured representation from the New Mexico Public Defender Department beginning in June 2005. Harper’s attorney made his first request for witness interviews to the State on July 8, 2006.{4} Five months later during a docket call, Harper’s attorney advised the district court that the parties were not prepared to go to trial because, despite two attempts, not all of the witnesses had been interviewed. Harper’s attorney acknowledged that the district court would not entertain a motion to dismiss at that time. Harper’s attorney therefore asked the court to set a date by which the witnesses were to be made available, and if the witnesses were not available or did not cooperate, then they could “take it from there.”{5} The State explained that one group of witnesses had been scheduled but had failed to appear, and stated that those witnesses would be rescheduled under subpoena. The two remaining witnesses included the victim, who was a minor, and Dr. Ornelas, who examined her. The State agreed to make the victim avail-able, but indicated that her interview would be the last to be scheduled so that Harper could consider the pending offer of a plea agreement. The State explained that under a policy in the Second Judicial District Attorney’s Office, a plea offer is withdrawn once a minor victim is inter-viewed. With respect to Dr. Ornelas, the State represented that there had been no attempt to set up the interview because the Public Defender Department had not yet authorized payment of Dr. Ornelas, and “we’ve got to get payment set up before that can be done.”{6} In response to an inquiry from the district court about the time left to try the case, the prosecutor stated that one month remained, but he intended to seek an extension of time for an additional six months. The district court then asked


how much time was needed to complete the interviews. The prosecutor estimated that a couple of weeks would be needed to interview the first set of witnesses. With respect to the victim, the prosecutor be-lieved she could be scheduled at any time, but cautioned that the plea offer would be withdrawn once that interview occurred. With respect to Dr. Ornelas, the prosecutor represented that “the doctor cannot be set up until payment is approved.” Harper’s attorney did not comment on any of the State’s representations. Accordingly, the district court scheduled the trial for Feb-ruary 19, 2007. With respect to the inter-views, the district court stated, with brief interruptions from counsel acknowledging what was being said:

[W]hat I’d like to do is to try to give a deadline of the 19th of January for these interviews to be completed. . . . And that way if we’re at that point and everything that can be done has been done, then you folks have a month to get the case actually ready to try. . . . Then if there’s at least in the Defense’s mind some continuing noncompliance, we’ll—the Court will consider any motions that you have some-time [sic] after that and figure out if any remedy is necessary.

{7} An order regarding the witness inter-views was never entered by the district court. It is not clear from the above pro-nouncement who had the responsibility to make the witnesses available. Despite the lack of clarity or any rule obligating the State to make witnesses available, it appears from the record that the State assumed that responsibility. It is also not clear who was to make arrangements to pay Dr. Ornelas, or if that arrangement was necessary at all. However, in a subsequent hearing, the State represented that other judges in the Second Judicial District Court have required the Public Defender Department to pay the doctor in this type of case. Overall, the lack of evidence and the vagueness of the commentary by both the attorneys and the district court make analysis of this case difficult.{8} In any event, although some witnesses were interviewed under subpoena, the vic-tim and Dr. Ornelas were not. The prosecu-tor scheduled the victim to be interviewed by Harper on January 19, 2007, and as recently as January 18 the victim had purportedly advised the prosecutor that she would attend the interview. However, she did not appear for her interview and

apparently avoided a follow-up phone call from the prosecutor. The prosecutor never scheduled Dr. Ornelas for an interview because payment arrangements were not made. The State filed a motion to extend the time to produce witnesses, and Harper filed a motion to exclude the State’s wit-nesses. Both motions were heard on March 29, 2007. Prior to the hearing, pursuant to Rule 5-604, the State secured an additional time extension from this Court to try the case, which was then set for trial on June 24, 2007.{9} The district court ultimately excluded both the victim and Dr. Ornelas as wit-nesses, citing the following reasons: (1) the State failed to comply with an unam-biguous deadline; (2) “witness[es cannot] hold hostage their testimony and their cooperation with discovery in a criminal case on simply a philosophy of no-pay-no-play”; (3) the State failed to produce any witnesses to testify in support of its allegations that the victim had been pres-sured by Harper’s family not to cooperate with the prosecution; and (4) Harper was prejudiced because of “lack of discovery, lack of ability to prepare, lack of confron-tation, incarceration . . . during all of this delay.” The prosecution conceded that “as long [as] these two witnesses remain un-able to testify, the State cannot go forward and put on a prima facie case.”{10} Following the district court’s order excluding the two witnesses, the court lowered Harper’s $200,000 cash-only bond to a $50,000 cash or surety bond with numerous conditions of release. Harper was released from state custody in late July 2007. The State appealed to the Court of Appeals.{11} The Court of Appeals, in an Opinion authored by Judge Kennedy with Judge Robles concurring, reversed the district court’s exclusion of the victim’s testimony, and affirmed the district court’s exclu-sion of Dr. Ornelas’s testimony. Judge Bustamante concurred as to the victim and dissented as to Dr. Ornelas. State v. Harper, 2010-NMCA-055, ¶¶ 37-61, 148 N.M. 286, 235 P.3d 625 (Bustamante, J., specially concurring in part and dissent-ing in part). At the outset of its Opinion, the majority emphasized that it would not disturb the district court’s rulings absent an abuse of discretion, but noted that ex-clusion of witnesses is improper absent a party’s intentional refusal to comply with a court order and prejudice to the oppos-ing party. Id. ¶¶ 11-12. Judge Bustamante agreed with this statement of the law. Id. ¶¶ 45, 48-49 (Bustamante, J., specially

concurring in part and dissenting in part).{12} Regarding the victim, the majority, with Judge Bustamante concurring, con-cluded that the State had made adequate efforts to make the victim available for an interview within the time frame set forth by the district court, and prejudice shown by Harper was insufficient. Id. ¶¶ 16, 51-52. With regard to the State’s compliance, the Court of Appeals cited the State’s scheduling of the interview with the victim, its willingness to reschedule the interview when the victim failed to attend, and Harper’s ability to access the victim’s Safehouse interview. Id. ¶¶ 14, 16. The Court also concluded that Harper failed to establish more than speculative prejudice when the victim’s possibly faded memory was the only prejudice offered. Id. ¶¶ 16, 47, 54. The Court of Appeals concluded that any “culpability” attributable to the State for the victim’s eleventh-hour interview date was “mollifie[d]” by the State’s efforts to secure the victim for an interview. Id. ¶ 14.{13} With respect to Dr. Ornelas, the ma-jority concluded that the State’s refusal to schedule the doctor directly contravened the district court’s order. Id. ¶¶ 17-18. The majority’s conclusion was driven by its firm rejection of the State’s claim that the State’s recalcitrance was justified by its concerns regarding payment of Dr. Ornelas’s witness fees. Id. ¶ 24. Indeed, the majority concluded that the State had failed to even preserve the issue regarding the fees, as it had not invoked a ruling be-fore the district court. Id. ¶ 18. In review-ing the substance of the State’s claim, the majority explained that the State could not exploit its control over witnesses to make demands for payment of witness fees in the face of an “unambiguous” district court order. Id. ¶¶ 20, 28. The majority also rejected the State’s contention that it was Harper’s obligation to subpoena Dr. Ornelas under Rule 5-503 NMRA, concluding that the State could not sud-denly shed the responsibility it adopted for scheduling witness interviews, and that the district court obviated Harper’s obligation to seek a subpoena for Dr. Ornelas. Harper, 2010-NMCA-055, ¶¶ 22, 30. Finally, the majority found that, despite the State’s intransigence, Harper was not prejudiced by the State’s failure to schedule the doctor for an interview. Id. ¶ 34. Despite this finding, and despite noting earlier in the Opinion the need for a showing of prejudice, the majority af-firmed the district court’s exclusion of Dr. Ornelas. Id. ¶ 35.


{14} In his dissent to the majority’s af-firmation of the exclusion of Dr. Ornelas, Judge Bustamante emphasized the lack of prejudice to Harper and cited both parties’ culpability in failing to address the pay-ment of fees to Dr. Ornelas. Id. ¶¶ 55, 61 (Bustamante, J., specially concurring in part and dissenting in part). We agree that Harper was not prejudiced by the failure to schedule the interviews of either the victim or Dr. Ornelas under the deadline established by the district court.{15} Because the exclusion of a witness is improper absent an intentional refusal to comply with a court order, prejudice to the opposing party, and consideration of less severe sanctions, we affirm the Court of Appeals as to the victim and reverse as to Dr. Ornelas. Therefore, exclusion of the witnesses was an abuse of discretion.EXCLUSION OF WITNESSES AS A SANCTION REQUIRES AN INTENTIONAL VIOLATION OF A COURT ORDER, PREJUDICE TO THE OPPOSING PARTY, AND CONSIDERATION OF LESSER SANCTIONS.{16} A court has the discretion to impose sanctions for the violation of a discovery order that results in prejudice to the op-posing party. State v. Bartlett, 109 N.M. 679, 680, 789 P.2d 627, 628 (Ct. App. 1990). A court abuses its discretion when its “ruling is clearly against the logic and effect of the facts and circumstances of the case.” State v. Lopez, 2011-NMSC-035, ¶ 14, 150 N.M. 179, 258 P.3d 458 (internal quotation marks and citation omitted). The assessment of sanctions “depends . . . upon the extent of the Government’s culpability . . . weighed against the amount of prejudice to the defense.” State v. Ch-ouinard, 96 N.M. 658, 661, 634 P.2d 680, 683 (1981) (discussing non-disclosure of evidence (internal quotation marks and citation omitted)); see generally 5 Wayne R. LaFave, et al., Criminal Procedure § 20.6(b) (3d ed. 2010). Extreme sanctions such as dismissal are “to be used only in exceptional cases.” Bartlett, 109 N.M. at 680, 789 P.2d at 628. “The trial court . . . should seek to apply sanctions that affect the evidence at trial and the merits of the case as little as possible.” LaFave, § 20.6(b), at 500-01 (internal quotation marks and citation omitted). Under this rubric, the mere showing of violation of a discovery order, without a showing of prejudice, is not grounds for sanctioning a party. Bartlett, 109 N.M. at 680, 789 P.2d at 628. Prejudice must be more than speculative; the party claiming prejudice

must prove prejudice—it is not enough to simply assert prejudice. State v. McDaniel, 2004-NMCA-022, ¶ 6, 135 N.M. 84, 84 P.3d 701.{17} Our case law generally provides that the refusal to comply with a district court’s discovery order only rises to the level of exclusion or dismissal where the State’s conduct is especially culpable, such as where evidence is unilaterally withheld by the State in bad faith, or all access to the evidence is precluded by State intransigence. See, e.g., State v. Ortiz, 2009-NMCA-092, ¶ 37, 146 N.M. 873, 215 P.3d 811; State v. Layne, 2008-NMCA-103, ¶ 13, 144 N.M. 574, 189 P.3d 707. In Ortiz, the defendant who had been charged with driving while intoxicated (DWI) sought to prove that the stop of his vehicle was pretextual. 2009-NMCA-092, ¶ 3. The district court ordered the State to turn over a police officer’s personal cell phone records that were “relevant” to the defendant’s theory that the DWI stop was pretextual. Id. ¶¶ 12, 15. The State refused to comply with the order, even though the district court offered to allow the State to review the records in advance of production and to seek a protective order if the records were irrelevant or implicated confidentiality concerns. Id. ¶¶ 36-37. The State also rejected the court’s offer to conduct an in-camera review of the records prior to production. Id. ¶¶ 20, 37. Concluding that “the actions of the State [were] in bad faith, arguably intentionally preventing the trial from going forward,” id. ¶ 20 (internal quotation marks omitted), the district court dismissed the charges against the defendant, id. ¶ 21. On appeal, the Court of Appeals held that the “State’s actions constituted conscious, intentional, and unjustifiable rejection of and refusal to comply with the district court’s order.” Id. ¶ 39. Accordingly, the Court of Appeals affirmed the district court’s sanction of dismissal. Id. ¶¶ 33-34, 50. The Court of Appeals has taken a similar approach in cases involving the exclusion of witnesses. Layne, 2008-NMCA-103, ¶ 13 (finding exclusion of confidential informant proper where the State “intentionally chose not to comply with the [district court’s discov-ery] order”).{18} By way of contrast, in instances where the State has not demonstrated bad faith, willful non-compliance, or flat-out disregard for a discovery order, our appel-late courts have been reluctant to affirm the imposition of extreme sanctions. For example, in Bartlett, the district court or-dered the State to produce a videotape of a

police interview with the victim. 109 N.M. at 680, 789 P.2d at 628. Upon the State’s failure to produce the tape, the district court dismissed the case. Id. On appeal, the Court of Appeals noted that the district court had failed to establish any “deliber-ate misconduct or bad faith on the part of the state,” id. at 681, 789 P.2d at 629, and that absent “indications of more culpable behavior,” the rare sanction of dismissal was unwarranted, id. at 682, 789 P.2d at 630.{19} However, even when a party has acted with a high degree of culpabil-ity, the severe sanctions of dismissal or the exclusion of key witnesses are only proper where the opposing party suffered tangible prejudice. Compare Mathis v. State, 112 N.M. 744, 748, 819 P.2d 1302, 1306 (1991) (affirming dismissal), State v. Duarte, 2007-NMCA-012, ¶ 15, 140 N.M. 930, 149 P.3d 1027 (affirming dismissal), and State v. Martinez, 1998-NMCA-022, ¶ 12, 124 N.M. 721, 954 P.2d 1198 (af-firming dismissal), with Bartlett, 109 N.M. at 680-81, 789 P.2d at 628-29 (holding dismissal was not warranted). The require-ment that any serious sanction against the State be conditioned on a finding of preju-dice is well established in our case law, is conceded by both parties in this case, and is recognized by both the majority opinion and the dissent filed by the Court of Ap-peals in these proceedings. See Harper, 2010-NMCA-055, ¶¶ 12, 49. “[T]he focus in determining prejudice is on whether the missing evidence is important and critical to the case.” Mathis, 112 N.M. at 748, 819 P.2d at 1306; see also LaFave, § 20.6(b), at 495-96 (“In general, the concept of ‘prejudice’ in this context is limited to an adverse impact upon the defense’s ability to prepare and present its case.”). “[P]rejudice must be more than speculative.” McDaniel, 2004-NMCA-022, ¶ 6.{20} Therefore, when discovery has been produced late, prejudice does not accrue unless the evidence is material and the disclosure is so late that it undermines the defendant’s preparation for trial. See Mar-tinez, 1998-NMCA-022, ¶ 12 (“The focus in determining prejudice is whether the missing evidence is important and criti-cal to the case.” (internal quotation marks and citation omitted)). The potential for prejudice is manifest when, for example, material evidence is withheld altogether, see, e.g., Layne, 2008-NMCA-103, ¶ 5, or where the State withholds evidence until the eleventh hour and then springs it on the defendant, see, e.g., Martinez, 1998-NMCA-022, ¶¶ 11-12 (prejudice


found when State introduced an amended witness list including a new witness the day before the trial was scheduled). How-ever, when discovery is merely delayed in reaching the defendant, or the defendant has knowledge of the contents of the unproduced evidence, determination of prejudice is more elusive. State v. McGee, 95 N.M. 317, 319, 621 P.2d 1129, 1132 (Ct. App. 1980) (“The defendant was not prejudiced by the non-disclosure of [an audio] tape . . . [where d]efense counsel was already aware of the conversation.”); United States v. Ingraldi, 793 F.2d 408, 411-12 (1st Cir. 1986) (“When the issue is one of delayed disclosure rather than of nondisclosure . . . the test is whether defendant’s counsel was prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant’s case.”).EXCLUSION OF THE WITNESSES IN THIS CASE WAS AN ABUSE OF DISCRETION.{21} Here, the district court did not dis-miss the State’s case. However, exclusion of the victim and the doctor who examined the victim deprived the State of making a prima facie case against Harper, which is the functional equivalent of a dismissal. The exclusion of witnesses is a severe sanction that raises questions about the fairness of the judicial process. Patterson v. State, 419 So. 2d 1120, 1122 (Fla. Dist. Ct. App. 1982). Therefore, like outright dismissal of a case, the exclusion of wit-nesses should not be imposed except in extreme cases, and only after an adequate hearing to determine the reasons for the violation and the prejudicial effect on the opposing party. O’Brien v. State, 454 So. 2d 675, 677 (Fla. Dist. Ct. App. 1984).{22} The State’s conduct in these pro-ceedings was not characterized by the degree of culpability that gives rise to an exclusionary sanction. Unlike in Ortiz and Layne, here the State has neither acted in bad faith nor completely blocked access to evidence. Regarding the victim’s inter-view, the State did schedule an interview, even though it did so at the eleventh hour. Although the State is not generally obli-gated to make witnesses available for an interview, we proceed with the premise that, because the State in this case assumed the responsibility of scheduling witness interviews, it had the obligation to follow through in good faith.{23} It is undisputed that the State did schedule the victim for an interview and that the victim simply did not appear. The prosecutor represented to the district court

that he met with the victim and her aunt in his office to arrange the interview, and the victim agreed to appear. The prosecutor also represented that his office confirmed the victim’s appearance for her interview the day before it was scheduled. The State represented to the district court that the reason she did not appear was because of pressure put on her by Harper’s daughter. The district court scolded the State for failing to bring witnesses to the hearing who could testify about the familial pres-sure brought to bear on the victim. The State suggested that it would subpoena the witness, but had not done so for the hearing because it thought it was “a legal motion.” Although the State should have produced the witness at this hearing, the prosecutor’s representations about the vic-tim’s anticipated cooperation were based on personal knowledge. This information from an officer of the court could only lead to the conclusion that the State did not intend to preclude Harper’s attorney from interviewing the victim. In its mo-tion, the State asked the district court for an extension of time to schedule the inter-view once the victim, who is a minor, was subpoenaed. This evidenced the State’s efforts to comply with the district court’s order.{24} In addition, Harper was not preju-diced by the delay. The record reflects that Harper’s attorney did not request the opportunity to interview witnesses until July 8, 2006. Harper had neither filed a motion to compel interviews nor issued subpoenas, nor did he contend during the docket call that interviewing the victim at that late date, or even on January 19, 2007, would somehow prejudice him. Harper’s attorney had a copy of a previ-ous Safehouse interview with the victim. More importantly, ample time remained on the Rule 5-604 extension to conduct interviews after the March 2007 exclusion hearing. By the time that hearing was held, the deadline for trial was not set to expire until June 24, 2007. At the December 2006 hearing, when the district court imposed the January 19 discovery deadline, the district court noted that under the February trial date, the parties still had “a month to get the case actually ready to try.” Faced with a request for even more time to con-duct interviews in March, the district court abruptly excluded the State’s two vital wit-nesses. In so doing, the district court made only a cursory finding of prejudice, merely enumerating “the subcategories of lack of discovery, lack of ability to prepare, lack of confrontation, [and] incarceration of

the defendant during all of this delay.” Given that we do not uphold exclusion without more than a finding of speculative prejudice and the extreme character of the exclusion sanction, the district court’s finding of prejudice and the resulting ex-clusion of the victim constitutes an abuse of discretion.{25} With respect to Dr. Ornelas, we do not agree that the State acted in bad faith or intentionally violated the district court’s deadline. Unlike in Ortiz and Layne, here the State did not completely block access to evidence. Therefore, in this case, the prosecutor’s actions were more akin to a negligent failure to comply than willful non-compliance. See Bartlett, 109 N.M. at 681, 789 P.2d at 629 (“Given the trial court’s failure to explicitly find [bad faith or misconduct on the part of the State] . . . and the absence of any real indication that loss of the tape was deliberate, this fault weighs against the state only slightly more than negligent loss of evidence.”).{26} The issue for the State to address was whether the Public Defender Depart-ment would arrange to pay the doctor for her time during the interview. It is beyond cavil that an indigent defendant is entitled to reasonable and necessary expenses for his or her defense. See State v. Brown, 2006-NMSC-023, ¶ 31, 139 N.M. 466, 134 P.3d 753. The remaining questions to be resolved are (1) whether Dr. Ornelas was entitled to a fee in advance of her in-terview, if at all, and (2) whether the State or the Public Defender Department had to pay the fee. The record in this case does not allow us to provide a definitive an-swer. We agree with Judge Bustamante’s observation that had the parties availed themselves of formal discovery methods, the issue “of fees for experts in these circumstances, including whether, when, and how they were to be paid” could have been appropriately addressed. Harper, 2010-NMCA-055, ¶ 58 (Bustamante, J., specially concurring in part and dissenting in part).{27} In this case, the State did not abso-lutely refuse to comply with the district court’s directive. The district court was on notice that the only reason Dr. Ornelas was not interviewed at the time of the docket call was because of a concern regarding her payment. Unlike the district court in Ortiz, 2009-NMCA-092, ¶ 36, here the district court made no efforts to work with the State to address its concerns. The payment issue was raised by the State during the docket call, and a decision as to whether, when, and how the fees were to


be paid was not decided. Harper certainly did not protest the State’s assertion that the Public Defender Department had to arrange for the payment. It would be pure speculation whether the parties had any discussions or disagreements regarding payment until the hearing that resulted in the exclusion of the two witnesses. If the district court believed that it had issued an unambiguous directive to the State to produce Dr. Ornelas for an interview, regardless of the compensation issue, the district court could have ordered the State to pay any fees as a sanction for not producing the doctor for an interview. This would have been a less severe sanction than excluding the witnesses altogether.

Instead, the district court simply indicated that what it would “like to do is to try to give a deadline of the 19th of January for these interviews to be completed,” and “if there’s at least in the Defense’s mind some continuing noncompliance, we’ll—the Court will consider any motions that you have sometime after that and figure out if any remedy is necessary.” This declara-tion is hardly an unambiguous order for the State to produce the witnesses for an interview by a time certain, or suffer the exclusion of the witnesses from testify-ing at trial. Under the circumstances of this case, failure to impose a less severe sanction, together with the lack of any proof of prejudice to Harper or an inten-

tional refusal to obey the district court’s discovery directive, constituted an abuse of discretion.CONCLUSION{28} We reverse the district court’s order precluding the victim and Dr. Ornelas from testifying at trial and remand for proceedings consistent with this Opinion.{29} IT IS SO ORDERED. EDWARD L. CHÁVEZ,

Justice

WE CONCUR:CHARLES W. DANIELS, Chief JusticePATRICIO M. SERNA, JusticePETRA JIMENEZ MAES, JusticeRICHARD C. BOSSON, Justice


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Special MastersThe United States District Court for the District of New Mexico is seeking one or more Special Masters for the following water rights adjudications: New Mexico ex rel. State Engineer v. Abbott, Nos. 68cv7488-BB & 70cv8650-BB consolidated (Rio Santa Cruz & Rio Truchas adjudication); New Mexico ex rel. State Engineer v. Aragon, No. 69cv07941-BB (D.N.M.) (Rio Chama adjudication); United States v. A & R Productions, No. 01cv00072-BB (D.N.M.) (Zuni River Basin adjudication, including No. 07cv000681-BB, which is a for-mal subproceeding dealing with Zuni Indian claims). The requirements for the positions are the following: attorney at law admitted to practice in New Mexico or another prior appropriation state; experience with water rights; trial practice as counsel, judge, special master, or hearing examiner; clear legal writing skills, and not disqualified under Fed.R.Civ.P. 53 (a)(2). The United States and the State of New Mexico will recommend a candidate or candidates to the Hon. Bruce D. Black in con-sultation with the other parties to the cases. If you would like to be considered, please submit a proposal as soon as possible, but not later than January 23, 2012, including a resume and a le-gal writing sample, together with a schedule of your proposed fees and reimbursable expenses. Counsel for the United States and for the State of New Mexico will review all submittals and may conduct interviews with candidates for the position. Counsel for other parties may also review the submittals and participate in interviews. If interviews are conducted, travel will be at the expense of the candidate. Pro-posals should be mailed to Edward C. Bagley, Litigation and Adjudication Program, State Engineer Office, P.O. 25102, Santa Fe, New Mexico 87504-5102, FAXed to Mr. Bagley at (505) 827-3887, or emailed in pdf format to him at [email protected].

Outside CounselContinental Divide Electric Cooperative, Inc., a member-owned electric utility corporation, is seeking outside counsel who is a member, in good standing, of the New Mexico bar association. Qualified candidates must have a minimum of five (5) years of experience in the following; corporate law, public utility law, contract law, and, or unemployment compensa-tion law. Candidates should be familiar with Robert’s Rules of Order, The New Mexico Open Meetings Act, and Inspection of Public Records Law. Applicant must be able to attend monthly and other meetings as required; in, as well as, outside the Cooperative service area. Please send your sealed resume and hourly or monthly professional and travel rates, by 4:30 p.m. Wednesday, January 11, 2012 to: Corina Sandoval, Human Services Department, Con-tinental Divide Electric Cooperative, Inc., P.O. Box 1087, Grants, N.M. 87020.

Would you like to earn a little extra money to pay for those holiday expenses?One of the staff attorneys at the State Bar’s Lawyer Referral for the Elderly Program (LREP) will be taking leave during January and February 2012, and as such, LREP is looking to fill the Albuquerque-based part time position temporarily for the months of January and February. It is possible the posi-tion could continue after February 2012, but that is not certain at this point. Primary duties include working the legal helpline answering general civil law questions for senior citizen clients, providing brief services and making private attorney referrals for more extended representation. Must be able to work between 20-30 hours a week. Patience and compassion required. Requires a current license to prac-tice law. Salary is comparable to other legal services providers. Send letter of interest and resume to LREP Managing Attorney, PO Box 92860, Albuquerque, NM 87199 or email to [email protected]. EOE.

(505) 988-2826 • [email protected]

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

http://www.stevetucker.net








Paralegal & Legal Assistant-Advanced (#18536) - DOT The New Mexico Department of Transporta-tion (NMDOT), Office of General Counsel, located in Santa Fe, seeks an experienced Paralegal/Legal Assistant to work in its Employment and Administrative Law Unit. Applicants should have a high school diploma or GED, an Associate’s Degree in Paralegal Studies and a minimum of two (2) years of work experience in drafting legal correspon-dence and pleadings, conducting legal research and maintaining a case management/tracking system. Any combination of education from an accredited college or university in a related field and/or direct experience in this occupa-tion totaling two (2) years may substitute for the required education. Paralegal certification is preferred, but not required. Salary range is $27,664 to $49,171 annually, with all State benefits to apply. Further details regarding the position, Class Code H2011A, are avail-able at: http://www.spo.state.nm.us. Apply to the New Mexico State Personnel Office, at the aforementioned web address no later than January 13, 2012. In addition, please send a copy of your resume and a writing sample to the attention of Toby Gurule, in the Human Resources Division of NMDOT, located at 1120 Cerrillos Road, Room 135, P.O. Box 1149, Santa Fe, NM 87504-1149. NMDOT is an Equal Opportunity Employer.

Senior Trial Attorney, Valencia CountyAssistant Trial Attorney, Sandoval CountyThe 13th Judicial District Attorney’s Office is accepting resumes for an experienced Senior Trial Attorney in the Valencia County Office, Belen, NM and an Assistant Trial Attorney in the Sandoval County Office, Bernalillo, NM. The Senior Trail Attorney position requires substantial knowledge in areas of child abuse and complex felony work. Upon request, be prepared to provide a summary of cases tried. Salary is based upon experience. Send resumes to Carmen Gonzales, HR Administrator, P.O. Box 1750, Bernalillo, NM 87004, or via E-Mail to: [email protected]. Deadline for submission of resumes: Open until posi-tions are filled.

Assistant County AttorneyBernalillo County is seeking applications for the position of Assistant County Attorney to perform legal work for the County of Bernalillo specifically in the areas of Zoning and En-vironmental Health, Animal Care Services Regulations, Personnel, Labor and Contracts. The position entails filing and prosecuting criminal complaints in Metropolitan Court, advising administration regarding personnel disciplinary matters, drafting and reviewing contracts, assisting union negotiating commit-tees, performing research, and litigating some matters including but not limited to contract issues, preliminary injunctions, permanent injunctions and abatement of nuisances actions in District Court. In addition, attendance at various administrative meetings on behalf of the County may be required. Works under the direction of the County Attorney. Requires a J.D. degree and licensed to practice law in the State of New Mexico. Minimum of 2 years experience in the practice of law. Salary negotiable. Benefit package included with sal-ary. The On-line Application Process can be accessed at website www.bernco.gov/alljobs/. Copies of required certifications, registrations, and/or licenses, if not attached on-line, must be provided at the time of interview. Bernalillo County is an equal opportunity employer, of-fering a great work environment, challenging career opportunities, professional training and competitive compensation. For more informa-tion regarding the job description, salary and closing dates visit the Bernalillo County web site at www.bernco.gov and refer to the section on job postings. Apply on-line or in person at Bernalillo County Human Resources Depart-ment, One Civic Plaza,4th Floor. Albuquerque, New Mexico, 87102

Request for ApplicationsCity of AlbuquerqueAssistant City Attorney PositionRevised Address and Deadline DateAssistant City Attorney: Assistant City Attor-ney position available with the Real Estate and Land Use Division with 1-3 years’ experience in real estate or land use litigation in handling pretrial discovery, motion practice, trial prepa-ration, and trial. The position will also include advising City Departments and Administrative Boards regarding land use decisions. Salary will be based upon experience and the City of Albuquerque Attorney’s Personnel and Com-pensation Plan with a City of Albuquerque Benefits package. Please submit resume to the attention of “Land Use Attorney Application.” c/o Roberta Duran, Fiscal Officer, P. O. Box 2248, Albuquerque, NM 87103. Revised Ap-plication Deadline is January 20, 2011

Ron Bell Injury LawyersFull Time Personal Injury AttorneyFluency in both Spanish and English is highly preferred. New Mexico licensure is required, as well as one to three years of personal injury experience and strong academic credentials. Qualified candidates will be highly motivated, client driven and will enjoy working in a fast-paced environment and meeting multiple deadlines simultaneously. Needles software experience is preferred, but not required. Benefits include medical, dental, vision and life policies as well as 401k and paid time off. Please email letter of interest (including salary requirements), resume, transcripts, professional references and writing sample to [email protected] or fax to 1-866-413-7286. (e-mail correspondence is preferred). Please ensure that all correspondence references “Personal Injury Attorney”.

Supreme Court of New Mexico - Associate Staff Counsel PositionThe Supreme Court seeks to fill an attorney-associate position in its staff counsel office. The position is classified, and the annual salary is $68,603. The selected applicant will provide staff support to the Court’s rules committees, boards, and commissions and will provide legal research and writing assistance to the Court in all areas of its workload. For a detailed de-scription of the job qualifications, please visit the Jobs page on the New Mexico Judiciary Web Site at www.nmcourts.gov. To apply, you must submit a completed New Mexico Judicial Branch Application for Employment, a letter of interest and resume by mail to Joey D. Moya, P.O. Box 848, Santa Fe, NM 87504. Complete applications must be received by January 12, 2012, at 5:00 p.m.

All advertising must be submitted via e-mail by 4:00 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 e-mail [email protected]

SUBMiSSioN DeADliNeS

www.nmbar.org


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




http://www.bernco.gov/alljobs/

http://www.bernco.gov

http://www.nmcourts.gov



serviCes

Medical Consultant for Chemical Sensitivities & Environmental IllnessesAnn McCampbell MD, 505-466-3622, [email protected]

Legal Research & WritingMeet your deadlines with confidence. You: have a busy office but need confidential, qual-ity work to meet your client’s expectations. I: relish research and excel in persuasive writing. Strong language skills in Spanish and French. 505-269-1693 or [email protected]

offiCe sPaCe

Professional Offices: Great Location—Great PriceFurnished or Unfurnished-two offices in pres-tigious downtown building. Includes separate spaces for assistants, impressive reception area, conference room and small kitchen, state of the art telephones and high speed internet. Receptionist services available. Attached in-door parking @55 per month. NM Bank & Trust Building (4th & Gold) $495 or $695 for large corner office—No lease required. Liz @ 505-235-8854.

Need Help In Your Office?25+ years experience - Legal Asst/Paralegal du-ties. Meet or request Resume/Portfolio packet.Short/long-term. Call Hope: 505/850-9040.

Workers’ Compensation Legal AssistantDowntown Albuquerque litigation law firm, seeks a Workers’ Compensation Legal As-sistant. Must have experience. Full-time with benefits. Fast paced office. Must be organized and a team player. Submit resume by email to [email protected]

Director, Administrative Office of the District Attorneys This position performs a variety of administra-tive, legislative, and managerial duties as the agency director for AODA and on behalf of the elected District Attorneys, and supervises AODA staff and budget. Equal Opportunity Employer. Full application information at http://www.da.state.nm.us

Help and Support are only a phone call away. Confidential assistance – 24 hours every day.

Judges call 888-502-1289Lawyers and law students call 505-228-1948 or 800-860-4914

http://www.nmbar.org/JLAP/JLAP.html

New Mexico Lawyers and Judges assistaNce PrograM

You don’t have to manage alone

New Mexico Lawyers and Judges Assistance Program (NMJLAP) provides free, confidential assistance to law students and members of the New Mexico bench and bar to help identify and address problems with alcohol, drugs, depression, and other mental health issues. NMJLAP assists in reducing public harm caused by impaired members of the legal profession and helps improve the health and welfare of its members by facilitating early intervention and treatment.

www.nmbar.org


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



http://www.nmbar.org/JLAP/JLAP.html



2012 – 2013 Bench & Bar

Directory advertising sales

are now in progress.

To make your space reservation, please contact Marcia Ulibarri505.797.6058 | [email protected]


The SBNM Talent Show will be held from 6 – 9 p.m., March 9, 2012 at the State Bar Center Auditorium.

Cost will be $50 per person and will include the show, food, and drinks.

All proceeds will go to fund legal services for the needy in New Mexico.

State Bar of New Mexico’s Got TalentA Bar Foundation fundraising event!

A few good acts needed

Casting Call

Singers • Bands • Musical ActsStand-Up Comics • Skits • Monologues

Poets • Magicians • DancersJugglers • Acts • Acts……….

Acts will be judged by members of the bench and bar.Prizes will be awarded to winners.

Make the CutAuditions will be held at 6 p.m., January 27, 2012,

at the State Bar Center Auditorium.

To audition, please contact Kate Mulqueen, 505.797.6064 or [email protected].

Sponsored by theState Bar of New Mexico Young Lawyers Division

BAR FOUNDATION


january 4, 2012 • volume 51, no. 1...bar bulletin - january 4, 2012 - volume 51, no. 1 1 rachel by...

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