October 5, 2009 • Volume 48, No. 40 · 2017-05-31 · 6 Ba r Bu l l e t i n - October 5, 2009 -...

Bar Bulletin - October 5, 2009 - Volume 48, No. 40 1

Inside This Issue

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October 5, 2009 • Volume 48, No. 40

Table of Contents ....................................................................5

N.M. Supreme Court Notice of Committee/Board Vacancies ..............................6

2009 Section Elections.............................................................7

Great Ending to a Long Journey: Supreme Court Accepts New Admittees, by Dorma Seago ............................................10

Clerk’s Certificates .................................................................17

From the New Mexico Court of Appeals

2009-NMCA-096, No. 28,265: State v. Hernandez ............................................................25

2009-NMCA-097, No. 28,189: International Association of Firefighters v. City of Carlsbad ............................................................28

2009-NMCA-098, No. 28,166: State v. Solano ...................................................................33

2009-NMCA-099, No. 27,812: State v. Diggs ...............................................38

2009-NMCA-100, No. 28,282: Arias v. Phoenix Indemnity Insurance Company ..............41

2009-NMCA-101, No. 28,049: Waterfall Community Water Users Association v. New Mexico State Engineer ...........................................45

The Angled Stare by Todd Lenhoff (see page 5)

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2 Bar Bulletin - October 5, 2009 - Volume 48, No. 40

The St. Thomas More Societyand

Catholic Charities

cordially invite you and your family, friends and associates to participate in the Annual Votive Mass of the

Holy Spirit, traditionally known as

The Red Mass

in honor of St. Thomas More and St. Ives, patrons of theLegal Profession, to seek Divine guidance for judges, lawyers,

law enforcement and the administration of justice.

Most Reverend Michael J. Sheehan, Main Celebrant

Friday, October 9, 2009at 12:00 Noon

Immaculate Conception Church619 Copper N.W.Albuquerque, NM


Equal Access to Justice needs air miles for a first class round trip ticket from DC to Albuquerque.

If you can donate your air miles, please contact Kate at 797-6064 or [email protected].

Equal Access to Justice raises money for legal aid in New Mexico.

You can bring a special guest speaker from Washington DC to the Justice for All Ball on November 14th by donating your air miles

to EquAl ACCEss to JustICE!

question:

Answer:

What do air miles and JustICE for All BAll have in common?

mailto:[email protected]


TWO WAYS TO REGISTERINTERNET: www.nmbarcle.org FAX: (505) 797-6071, Open 24 hours

Name ___________________________________________________________________ NM Bar # _________________________________

Street ____________________________________________________________________________________________________________

City/State/Zip _____________________________________________________________________________________________________

Phone ____________________________________________________ Fax ____________________________________________________

E-mail ____________________________________________________________________________________________________________

r Purchase Order (Must be attached to be registered) r Check enclosed $ ____________ Make check payable to: CLE

Credit Card # ________________________________________________________________ Exp. Date ________________ CVV# ________________

Authorized Signature _______________________________________________________________________________________________

Center for LegaL eduCationNew Mexico State Bar FouNdatioN

SILVER ANNIVERSARY FAMILY LAW INSTITUTEFriday and Saturday, October 16-17, 2009 • State Bar Center, Albuquerque

9.0 General, 2.0 Ethics and 1.0 Professionalism CLE Creditsr Standard Fee $339 r Family Law Section Member, Government, Legal Services Attorney, Paralegal $309

Co-Sponsor: Family Law Section

DAY ONE8:25 a.m. Introductory Remarks Maria Montoya Chavez, Esq., Sutin Thayer & Browne PC Chair, Family Law Section8:30 a.m. Advanced Military Pension Division Mark Sullivan, Esq., Law Offices of Mark E. Sullivan

Raleigh, North Carolina10:30 a.m. Break10:45 a.m. Services Members Civil Relief Act Mark Sullivan, Esq.12:15 a.m. Lunch (provided at the State Bar Center) Family Law Section Annual Meeting1:15 p.m. Military Custody Issues Mark Sullivan, Esq.3:15 p.m. Break3:30 p.m. Bankruptcy and Family Law Hon. James S. Starzynski, U.S. Bankruptcy Court, D.N.M. Geralde Velarde, Esq., Law Office of Gerald R. Velarde PC5:00 p.m. Adjourn and Reception (State Bar Center Lobby)

DAY TWO8:30 a.m. Family Issues and Mortgage Foreclosures in the Court Celia A. Ludi, Esq., 1st Judicial District Court9:10 a.m. Financial Planning Post-Divorce Kim Helm, Merrill Lynch9:50 a.m. Options for Marital Home Heidi Snow, Perennial Mortgage10:30 a.m. Break10:45 a.m. Ethics at the Movies (2.0 E) Larry J. Cohen,, Esq., Meyer Hendricks, PLLC, Phoenix, Arizona12:45 p.m. Lunch (provided at the State Bar Center)1:15 p.m. An Attorney’s Guide to Good Lawyering for People

with Disabilities (1.0 P) (videotape presentation)2:15 p.m. Adjourn

AN ATTORNEY’S GUIDE TO DEALING WITH STRESS IN TOUGH ECONOMIC TIMESThursday, October 29, 2009 • State Bar Center, Albuquerque

2.0 Ethics and 1.0 Professionalism CLE Creditsr Standard Fee $109 r Government, Legal Services Attorney, Paralegal $95

Co-Sponsors: Committee on Women and the Legal Profession and the Lawyer’s Assistance Committee

1:30 p.m. Recognizing and Dealing with Stress and the Ethical Consequences- Lawyers Assistance Committee

Bill Stratvert, Attorney Jill Anne Yeagley, University of New Mexico1:50 p.m. Personal Experiences in Dealing with Stress and

how Stress Could Possibly Lead to a Compromise in Competent Representation

Hilary Noskin, Ph.D., Attorney Briggs F. Cheney, Attorney

2:45 p.m. Ethical Considerations and a View from the Bench Briggs F. Cheney, Attorney The Honorable William Lang, former District Court Chief Judge Bill Stratvert, Attorney 3:30 p.m. Break3:40 p.m. Positive Techniques for Dealing with Stress in order to

provide Competent Representation to Clients Marilyn O’Leary, Attorney and Life Coach4:40 p.m. Adjourn

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Table of ConTenTs

MeetingsOctober5 Attorney Support Group, 5:30 p.m., First United Methodist Church

7 Bankruptcy Law Section Board of Directors, noon, U.S. Bankruptcy Court

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

8 Intellectual Property Section Board of Directors, noon, Rodey Law Firm

8 Public Law Section Board of Directors, noon, Risk Management Division

8 Business Law Section, 4 p.m., Keleher & McLeod

12 Taxation Section Board of Directors, noon, via teleconference

State Bar Workshops

October7 Lawyer Referral for the Elderly Workshop 10:45 a.m.–noon, Presentation 9–10 a.m. and 1:30–3 p.m. Clinics Ena Mitchell Senior Center, Lordsburg

8 Lawyer Referral for the Elderly Workshop 10:45 a.m.–noon, Presentation 9–10 a.m. and 1:30–3 p.m. Clinics Silver City Senior Center, Silver City

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

November18 Estate Planning/Probate Workshop 6 p.m., State Bar Center, Albuquerque

Notices ................................................................................................................................................................6A Great Ending to a Long Journey: Supreme Court Accepts New Admittees, by Dorma Seago ......................................................... 10Legal Education Calendar ......................................................................................................................... 12Writs of Certiorari ......................................................................................................................................... 14List of Court of Appeals’ Opinions ........................................................................................................... 16Clerk’s Certificates ......................................................................................................................................... 17Recent Rule-Making Activity ..................................................................................................................... 22Opinions


2009-NMCA-096, No. 28,265: State v. Hernandez .................................................................... 25

2009-NMCA-097, No. 28,189: International Association of Firefighters v. City of Carlsbad ........................................................................................................................... 28

2009-NMCA-098, No. 28,166: State v. Solano ............................................................................ 33

2009-NMCA-099, No. 27,812: State v. Diggs ............................................................................. 38

2009-NMCA-100, No. 28,282: Arias v. Phoenix Indemnity Insurance Company ........... 41

2009-NMCA-101, No. 28,049: Waterfall Community Water Users Association v. New Mexico State Engineer ................................................................................................... 45

Advertising ..................................................................................................................................................... 49

With respect to the courts and other tribunals:

I will voluntarily withdraw claims or defenses when they are superfluous or do not have merit.

Professionalism Tip

Officers, Board of Bar Commissioners Henry A. Alaniz, President Stephen S. Shanor, President-Elect Jessica A. Pérez, Vice President Hans William Voss, Secretary-Treasurer Craig A. Orraj, Immediate-Past President

Board of Editors Mark A. Glenn, Chair Joan Marsan Janet Blair Kathryn Joy Morrow Paul A. Bleicher Steven K. Sanders Joel McElroy Carson Stacey E. Scherer Danny W. Jarrett Elizabeth Staley

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] Pressman Brian Sanchez Production Assistant Pam Zimmer Press Shop Assistant Michael Rizzo

©2009, 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 quota-tions. 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

October 5, 2009, Vol. 48, No. 40Cover Artist:PaintingsbyToddLenhoff([email protected])giveanin-depth,vibrantviewofhisinterpretationofpeople.Throughcolor, line, and shape, he is able to bring character, culture and life to the canvas. He sees his work like that of the subject matter—a continuous evolution. To see the cover art in its original color, visit www.nmbar.org and click on Attorneys/Members/Bar Bulletin.










noTiCes

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 For Years May be Retrieved Through lst Judicial District Court Exhibits in Criminal, Civil, Domestic 1974–1993 October 30 (505) 827-4687 Relations, Children’s Court, and Probate Cases

N.M. SupreMe Court NotiCe of CoMMittee/Board VaCaNCieS Attorneys interested in volunteering their time on any of the committees/boards listed below may send a letter of interest and/or resume to Kathleen Jo Gibson, Chief Clerk, PO Box 848, Santa Fe, NM 87504-0848. The deadline for letters/resumes is Oct. 23. Interested attorneys should describe why they believe they are qualified and shall prioritize no more than three committees of interest.Courts of Limited Jurisdiction ............ 2Rules of Civil Procedure

for District Court ........................... 3Children’s Court Rules ........................ 1Appellate Court Rules ......................... 1Rules of Evidence ................................ 1Uniform Jury Instructions-Civil .......... 1Uniform Jury Instructions-Criminal ... 1Rules of Criminal Procedure

for District Court ........................... 1

Board of Bar Examiners ...................... 2Disciplinary Board .............................. 1Code of Professional Conduct ............. 1Domestic Relations Task Force ............ 1MCLE ................................................ 1Board of Legal Specialization............... 2Board Governing the Recording

of Judicial Proceedings .................... 1 (1 Ct. Reporter member)Code of Judicial Conduct ................... 2

All New Mexico attorneys must notify both the Supreme Court and the State Bar of changes in contact information.

Supreme Court E-mail: [email protected] Fax: (505) 827-4837 Mail: PO Box 848

Santa Fe, NM 87504-0848

State BarE-mail: [email protected]: (505) 828-3755Mail: PO Box 92860 Albuquerque, NM 87199Online: www.nmbar.org

address Changes

CourT newsN.M. Supreme CourtBoard Governing the Recording of Judicial ProceedingsReporter Monitor Problems The Supreme Court Board Governing the Recording of Judicial Proceedings ensures that outstanding reporting/record-ing services are provided to members of the State Bar and to hearing agencies. If any user of recording services encounters a reporter/monitor problem, the board requests counsel notify it with the following information: the date and type of hearing, the person or service that recorded the hear-ing and the nature of the problem. E-mail notifications to Board Administrator Linda McGee, [email protected]; mail to PO Box 92648 Albuquerque, NM 87199-2648; or call (505) 821-1440.

Board of Legal SpecializationComments Solicited The following attorney is applying for certification as a specialist in the area of

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

Kathryn E. TerryCertification, Family Law

First Judicial District CourtBrown-Bag Lunch Meeting A brown-bag lunch meeting will be held at noon, Oct. 13, in the courtroom of Judge Michael E. Vigil. Issues and topics for discus-sion may be submitted to Sally or Kim in the Criminal Division.

Judicial Vacancy A vacancy on the 1st Judicial District Court will exist in Santa Fe as of Jan. 1,

2010, upon the retirement of the Honor-able James A. Hall. Chief Judge Stephen Pfeffer has indicated that initially this divi-sion will be assigned to Juvenile, Domestic Relations as well as the Abuse and Neglect docket. Any questions regarding the details of the assignment of this judicial vacancy should be directed to the chief judge or the administrator of the court. Kevin K. Washburn, chair of the Judicial Nominating Commission, solicits applications for this position from lawyers who meet the statu-tory qualifications in Article VI, Section 36, of the New Mexico Constitution. Ap-plications may be obtained from the Judicial Selection Web site at http://lawschool.unm.edu/judsel/application.php, or via e-mail/fax/mail by calling Sandra Bauman, (505) 277-4700. The deadline for applications is 5 p.m., Oct. 19. Applications received after that date will not be considered. The District Judicial Nominating Commission will meet on Nov. 5 at the Judge Steve Herrera Judicial Complex, 100 Catron Street, Santa Fe, to evaluate the applicants for this position. The meeting is open to the public.





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Second Judicial District CourtAdoption Day The 2nd Judicial District Court, Chil-dren’s Court Division, will be celebrating National Adoption Day Nov. 21. Attorneys having an adoption pending in Bernalillo District Court with clients interested in participating in National Adoption Day should contact Nancy Sandstrom in Judge M. Monica Zamora’s office, (505) 841-7392.

Family Court Meeting All family law practitioners are invited to attend the Family Court judges/attorneys meeting at 11:30 a.m. Oct. 5, in the 3rd Floor Conference Room, Bernalillo County Courthouse, 400 Lomas NW, Albuquerque. Apportionment in Marital Dissolution (1.7 general CLE credits) will be presented from 11:30 a.m. to 1:30 p.m. The cost is $1.70 for those who would like to receive CLE credits. Payment must be made by check or cash only.

U.S. District Court, District of New MexicoFederal Bar Seminar The Federal Bar Association and the U.S. District Court, District of New Mexico, will present The Best Federal Bar Seminar Ever Oct. 15 (8:30 a.m.–5:15 p.m.) and Oct. 16 (8:30 a.m.–12:30 p.m.) at the Albuquerque Convention Center. The program will offer 10.0 general CLE credits. Federal judges and legal scholars will discuss and share insights on practicing before the federal court. Topics include “The Removal and Remand Game: How to Tiptoe Through the Mine-field;” “Sentencing Issues;” “Federal Grand Jury Practice;” “Voir Dire in Federal Court” and much more. For complete program information, agenda and registration, go to www.nmcourt.fed.us.

sTaTe bar newsAttorney Support Group • Afternoon groups meet regularly on

the first Monday of the month: Oct. 5, 5:30 p.m. • Morning groups meet regularly on

the third Monday of the month: Oct. 19, 7:30 a.m.

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

Business Law SectionBusiness Lawyer of the Year Award Since 2002, the Business Law Section has presented the annual Business Lawyer of the Year Award to a lawyer who has made significant contributions to the practice of business law in New Mexico. Past recipients have been: Robert J. Desiderio (2002) Graham Browne (2003) John (Jack) P. Burton (2004) Charles L. Moore (2005) James J. Widland (2006) Theodore Parnall (2007) Ruth Schifani (2008) The award will be presented at the sec-tion’s reception following the 2009 Business Law Institute CLE, 4:30–5:30 p.m., Nov. 6, at the State Bar Center, 5121 Masthead NE, Albuquerque. Hors d’oeuvres will be served. Submit nominations for the award by Oct. 16 to Christine Morganti, PO Box 92860, Albuquerque, NM 87199, fax (505) 828-3765; or e-mail [email protected].

Children’s Law SectionAnnual Art Contest The Children’s Law Section would like to thank those who have made the Seventh Annual Art and Writing Contest possible. The contest, supported by generous contri-butions from the legal community, provides children who are involved in the juvenile justice system with a positive opportunity to express their struggles, look toward the future, and celebrate artistic effort. This year, the children will create works on canvas bags based on the theme “Tools for Success.” Donations will enable contest organizers to purchase canvas bags, art supplies, and prizes. Mail donations to Children’s Law Section, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860. Donations are tax deductible through the State Bar Foundation tax exempt number 895-0390079. Members of the legal com-munity are invited to a reception and display of the artwork from 5 to 8 p.m., Oct. 28, at Scalo Northern Italian Grill, Albuquerque. Justice Petra Jimenez Maes will be the honored guest.

Committee on Women and the Legal ProfessionFall Social Mixer The Committee on Women and the Legal Profession will host a social mixer at Season’s Rotisserie & Grill at 5:30 p.m.,

Oct. 8. Connect with other members of the State Bar in a relaxed social environment. The committee will provide free appetizers. The social mixer is open to everyone and all are invited to attend. For questions about the committee or this event, contact Jocelyn Castillo, [email protected] or Katie Lynch, [email protected].

Employment and Labor Law SectionAnnual Meeting and CLE The Employment and Labor Law Sec-tion will hold its annual meeting during lunch, Oct. 9, in conjunction with the 2009 Employment and Labor Law Institute (5.0 general and 1.0 ethics CLE credits) at the State Bar Center. Agenda items should be sent to Chair Danny Jarrett, jarrettd@

2009 seCTion eleCTions

In accordance with section bylaws, each State Bar section is required to appoint a nominating committee for its annual election and provide notice of the election so that any section member may indicate his or her inter-est in serving on the board of directors. Interested section members should contact a member of the nominating committee by Oct. 10. Visit www.nmbar.org/About Us/Sections/2009 Section Election to see available board positions and contact information for nominating committee chairs.


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jacksonlewis.com or (505) 878-0515. The cost of the CLE program is $199; the fee for section members, government and legal services attorneys and paralegals is $169. Lunch will be provided. See the CLE At-a-Glance insert in the Sept. 14 (Vol. 48, No. 37) Bar Bulletin for more information. Register at www.nmbarcle.org or fax to (505) 797-6071.

Family Law SectionAnnual Meeting and CLE The Family Law Section will hold its annual meeting during the lunch break, Oct. 16, in conjunction with the Silver Anniversary Family Law Institute. All sec-tion members are encouraged to attend. Agenda items should be sent to Chair Maria Montoya Chavez, [email protected] or (505) 883-3312. The cost of the CLE pro-gram is $339; the fee for section members, government and legal services attorneys and paralegals is $309. Lunch will be provided. See the CLE At-a-Glance insert in the Sept. 14 (Vol. 48, No. 37) Bar Bulletin for more information. Register at www.nmbarcle.org or fax to (505) 797-6071.

Health Law SectionAnnual Meeting and CLE The Health Law Section will hold its annual meeting during lunch, Oct. 8, in conjunction with the 2009 Health Law Symposium. Send agenda items to Chair CaraLyn Banks, [email protected]. The cost of the CLE program is $219; the fee for section members, government and legal services attorneys and paralegals is $189.

Lunch will be provided. See the CLE At-a-Glance insert in the Sept. 14 (Vol. 48, No. 37) Bar Bulletin for more information. Register at www.nmbarcle.org or fax to (505) 797-6071.

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites members of the legal community to bring a lunch and attend Discovery Rules and Objections, presented by the Hon. Wendy York of Shee-han, Sheehan & Stelzner PA. The program will be held from noon to 1 p.m., Oct. 14, at the State Bar Center and offers 1.0 general CLE credit. The registration fee is $16 for attorneys, $10 for members of the Paralegal Division, and $15 for non-members. Registration begins at the door at 11:30 a.m. For more information, contact Cheryl Passalaqua, (505) 247-0411.

Senior Lawyers DivisionBoard of Directors Election The Senior Lawyers Division Nominating Committee has nominated the members listed below. Additional nominations may be made by Oct. 31 in the form of a petition signed by at least 10 members of the division. Visit www.nmbar.org/About Us/Divisions/Senior Lawyers/Election for more informa-tion and to download a petition. Position # 1 Term: 2010–2012

Nominee: Hannah Best Position #2 Term: 2010–2012

Nominee: Jay R. Hone Position #3 Term: 2010–2012

Nominee: Brigitte Lotze

Position #4 Term: 2010–2012Nominee: Mark Meiering

Position #5 Term: 2010–2012Nominee: Thomas Sandenaw

Position #6 Term: 2010–2012Nominee: James Widland

Six appointed board positions with terms of 2009–2011 are included in the election. SLD members may use the same petition process to challenge the following appointed positions: Position #7 James F. Beckley Position #8 R. Thomas Dawe Position #9 Michael Terrence Revo Position #10 Robert S. Simon Position #11 Ronald T. Taylor Position #12 Anthony J. Williams

Young Lawyers Division Election Members of the State Bar who have practiced law for five years or less or are under the age of 36 are eligible to serve on the YLD board of directors. The following positions are currently available: director-at-large, posi-tion 1; director-at-large, position 3; director-at-large, position 5; region 1 director (11th Judicial District); region 2 director (1st, 4th, 8th, and 10th Judicial districts); region 3 director (5th and 9th Judicial districts); and region 4 director (3rd, 6th, and 12th Judicial districts and Sierra County). For more information and to obtain a nomina-tion petition, visit www.nmbar.org and select About Us/Divisions/Young Lawyers and click on “Election.” Petitions must be received in the State Bar office by 5 p.m., Oct. 16. Should any of the positions be contested, ballots will be mailed Oct. 26.

oTher barsAlbuquerque Bar AssociationMember Luncheon The Albuquerque Bar Association’s member luncheon will be held at noon, Oct. 6, at the Embassy Suites Hotel, 1000 Woodward Place NE, Albuquerque. The luncheon speaker is Gregory J. Fouratt, U.S. attorney for the District of New Mexico. The CLE (2.0 general CLE credits) will immediately follow the luncheon from 1:15 to 3:15 p.m. Professor Ted Occhialino will present Recent Developments in New Mexico Civil Procedure: Case Law, New Rules and Proposed Rules, 2009 Update. Lunch only: $25 members/$35 non-members with reservations; lunch and CLE:

Board of Bar Commissioners2009 Election Notice Notice is hereby given that the 2009 election of seven commissioners for the State Bar of New Mexico will be held Nov. 30 as provided for in Supreme Court Rule 24-101, Rules Governing the New Mexico Bar and the State Bar of New Mexico Bylaws, Article IV. Four positions are three-year terms, two positions are one-year terms, and one position is a two-year term. Nominations to the office of State Bar commissioner shall be by the written petition of any 10 or more members of the State Bar who are in good standing and whose principal place of practice is the respective district. Members of the State Bar may nominate and sign for more than one candidate. Nomination petitions must be received by 5 p.m., Oct. 16, to allow for the reproduction of the ballots. Mail nomination petitions to: Executive Director Joe Conte State Bar of New Mexico PO Box 92860 Albuquerque, NM 87199-2860 Expiring terms, the nomination petition, and more information are available in the Sept. 14 (Vol. 48, No. 37) Bar Bulletin or on-line at www.nmbar.org.











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$85 members/$115 non-members with reservations; CLE only: $60 members/$80 non-members. To register: 1. log onto www.abqbar.com; 2. e-mail [email protected]; 3. call 505-842-1151 or 505-243-

2615; 4. fax to 505-842-0287; or 5. mail to PO Box 40, ABQ, NM

87103.

N.M. Criminal Defense Lawyers Association The New Mexico Criminal Defense Lawyers Association invites lawyers across New Mexico whose practice includes DWI Defense to attend DWI Defense 2009: A Halloween CLE, Oct. 30 in Albuquerque. Topics include MVD hearings and implied consent, case review, creative motions and more. Optional lunch breakout sessions cover “Solo Practice Office Management” and “Bring Your DWI Case File” with David Chacon and Ousama Rasheed. For schedule, registration and membership information, call (505) 992-0050 or visit www.nmcdla.org.

unMSchool of LawFall Library Hours to Dec. 19Building and Circulation Monday–Thursday 8 a.m.–11 p.m. Friday 8 a.m.–6 p.m. Saturday 9 a.m.–6 p.m. Sunday 9 a.m.–11 p.m.Reference Monday - Friday 9 a.m.–6 p.m. Saturday Closed Sunday Noon–4 p.m.

Free Library Services for New Mexico Attorneys • Check out circulating books. • Delivery (fax, e-mail, or mail) of articles

or other documents available in our col-lection. (Requests must include an exact citation.)

• Interlibrary loan of materials from other law libraries. (The Law Library does not charge a fee for this service, but the attorney will be responsible for any fees assessed by the lending library.)

• Onsite access to research databases such as Westlaw-Pro, LexisNexis Academic, Loislaw, Shepard’s, RIA Checkpoint, and many others.

• Onsite access to LexisNexis Academic and Loislaw at the UNM branch campus libraries in Valencia County, Gallup, and Los Alamos (licenses provided by UNM Law Library).

• Advice concerning the licensing of low- cost online legal resources.

For more information about the UNM Law Library and any of these free services, visit http://lawlibrary.unm.edu, call (505) 277-0935, or e-mail [email protected].

New Mexico Law ReviewRequest for Feedback and Articles Entering into its 40th volume, the New Mexico Law Review reaffirms their mission to be the primary source for legal scholar-ship on issues affecting New Mexico and seeks input and suggestions from the New Mexico legal community that would help fulfill that mission. Editors are seeking journal articles on topics of professional interest to New Mexico legal practitioners, judges, policy makers and law students. Articles that are instructive, visit recent developments in New Mexico law, or that

The Fair Judicial Elections Committee of the State Bar was organized to:

educate judicial candidates on the existence and content • of rules applicable to judicial election campaigns; assist candidates in understanding and complying with • those rules; monitor and investigate campaign statements and • advertisements for compliance with the rules;

comment publicly on any campaign statements and • advertising that are deemed to violate the standards of the rules; and request and encourage candidates, campaign • committees, and supporters of candidates to cease and desist from violations.

Are You Considering running For JudiCiAl oFFiCe?

discuss 10th Circuit jurisprudence would be especially appropriate. Articles addressing border issues and Indian law would also be fitting. Guidelines for article submissions can be found at http://lawschool.unm.edu/nmlr/article-submission.php. Send complete articles to [email protected]. Send general suggestions and inquiries to Erin McSherry, [email protected].

oTher newsSanta Fe Neighborhood Law CenterNeighborhood Law and Policy Conference The Santa Fe Neighborhood Law Center is sponsoring a Neighborhood Law and Policy Conference (10.0 general, 1.0 profes-sional and 1.0 ethics CLE credits) Nov. 5–6, at the Santa Fe Community Convention Center. Land use attorneys and Santa Fe city councilors will lead panel discussions on critical planning issues affecting Santa Fe and neighborhoods generally. The con-ference will cover issues including overlay districts, escarpment concerns, takings and property rights, housing and foreclosures, efficient green building, and neighbor-hood schools. On Thursday, New Mexico Supreme Court Justice Richard C. Bosson will speak on municipal administrative due process. On Friday, Court of Appeals Judge Timothy L. Garcia will discuss legal ethics and fair decision-making. Attendance is free to the public and up to 12.0 CLE credits are available to attorneys for $250 ($275 after Oct. 15). For more information, contact Peter A. Dwyer, [email protected] or fax (505) 992-6170. Visit www.santafenlc.com for program schedule and registration forms.


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by Dorma Seagoa greaT ending To a long Journey

SSG Benny Santiago, Jr.Ensign Brandon Hale Sargent

Clara Martinez Nevarez

Jennifer Lee Ivey

C. Blair Dancy

Geoffrey Dougles White

Zachary Thomas Taylor

On Sept. 21 the legal community and family members gathered in the Kiva Au-

ditorium in Albuquerque to help usher in 150 new admittees to the State Bar of New Mexico. (See pages 17–21 for a complete listing.) State Bar President Henry A. Alaniz and the Young Lawyers Division Chair Martha Chicoski welcomed the soon-to-be attorneys and encour-aged them to take advantage of all the services and opportunities the State Bar offers. Briggs Cheney described the support available through the Lawyers Assistance Program and shared his moving story of addiction and recovery. Mary Torres encouraged new admittees to become involved in the American Bar Association. As Board of Bar Examiners Chair M. David Chacon read the names, movants rose to present sons and daughters, spouses and siblings, nieces, nephews, and friends to the court, relating stories of sacrifice, hard work, achievement, and dreams come true. The ceremony was characterized by time-honored traditions unique to New Mexico—each new admittee signs the Roll of Attorneys, each new admittee is individually presented to the court, and each justice addresses the new attorneys personally. “Clients don’t care how much you know until they know how much you care,” reminded Senior Justice Patricio M. Serna, who presided over the ceremony. He asked attorneys to promote justice and emphasized the importance of family in their lives.

“After a brutal summer of stress over the bar exam and then waiting for results, I’m relieved to now

be looking forward.” —Zack Taylor

“It’s a great ending to a long journey.” —Clayton Hightower

“It feels good to get the last seven years of education all wrapped up.” —Beth Watson

Joshua Allison and son Elliot prove

that getting a law degree involves

the whole family.

Supreme Court ACCeptS New AdmitteeS

“I want to thank the staff of the Board of Bar Examiners for the professional service extended to all the applicants/new lawyers. The ceremony was outstanding. My family and I could not have been happier.” —Benny Santiago, Jr.

State Bar President Henry Alaniz welcomes

new admittees.


It’s all in the family. Siblings Peter Valencia and DeAnza Valencia (center) are the new attorneys in the family. DeAnza is married to Joseph Sapien (right), brother of Phillip Sapien (left).

Hal Landrum takes the oath.

Justice Charles W. Daniels and Justice Petra Jimenez Maes (left) listen to presenta-tions of new admittees. Board of Bar Examiners Chair M. David Chacon (right) calls the names of new admittees.

Kelly Stout is presented by her father, David Stout.

Mary McCulloch presented Leon Howard.

The Hon. Tommy Jewell presents Sherisse Summers.

BBC President-Elect Stephen Shanor presents Jennifer Heim.

Daniel Alsup (right) follows his grandfather Charlie (1951) and his father Gary (1981) into the bar. Gary (left), who is also a BBC commissioner, presented his son to the Court.

A proud Justice Patricio M. Serna presents his daughter, Elena Patricia Serna (left), to the Court.

Koo Im Sakayo Tong (left) was presented to the Court by Tara Ford (right).Athena Spencer was presented

to the Court by Heather Massoth.


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

effeCTive oCTober 5, 2009

Writs of certiorari

as updated By the clerk of the neW Mexico supreMe court

petitions for Writ of certiorari filed and pending: Date Petition FiledNO. 31,977 Ryan v. Heredia (12-501) 9/24/09NO. 31,976 State v. Manning (COA 27,756) 9/24/09NO. 31,975 State v. Vasquez (COA 27,763) 9/24/09NO. 31,974 Kavanough v. State (12-501) 9/24/09NO. 31,972 State v. Boston (COA 28,707) 9/24/09NO. 31,971 State v. Rueda (COA 29,145) 9/23/09NO. 31,970 State v. Wiseheart (COA 29,472) 9/23/09NO. 31,969 State v. Osby (COA 29,571) 9/23/09NO. 31,966 State v. Duran (COA 29,146) 9/18/09NO. 31,962 Manzanares v. McDonald (12-501) 9/16/09NO. 31,963 Gutierrez v. Fouth Judicial (12-501) 9/15/09NO. 31,960 Bounds v. Janecka (12-501) 9/14/09NO. 31,958 Keith v. Manorcare (COA 28,008) 9/14/09NO. 31,957 Gonzales v. Livingston (COA 27,896) 9/14/09NO. 31,954 State v. Muriel (COA 28,405) 9/9/09NO. 31,953 Rodeo v. Columbia (COA 28,384/28,445) 9/9/09 Responsefiled9/24/09NO. 31,951 State v. Lopez (COA 27.891) 9/8/09NO. 31,950 Progressive v. Vigil (COA 28,023/28,393) 9/8/09NO. 31,949 State v. Robert F. (COA 28,511) 9/4/09NO. 31,948 State v. Tanner (COA 27,606) 9/4/09NO. 31,947 State v. Bent (COA 29,227) 9/4/09NO. 31,944 State v. Montoya (COA 29,927) 9/3/09NO. 31,943 State v. Jacquez (COA 28,419) 9/3/09NO. 31,941 Rael v. Page (COA 27,332) 9/2/09 Responsefiled9/18/09NO. 31,939 State v. Choyce (COA 29,235) 9/1/09NO. 31,938 State v. Ruiz (COA 29,381) 9/1/09NO. 31,935 City of Rio Rancho

v. Duran (COA 29,383) 8/31/09NO. 31,928 State v. Bryant (COA 29,444) 8/27/09NO. 31,927 State v. Sanchez (COA 28,090) 8/26/09NO. 31,924 Dominguez v. Hatch (12-501) 8/25/09NO. 31,922 State v. Terrazas (COA 27,613) 8/21/09NO. 31,903 West v. Washington Tru

Solutions, L.L.C. (COA 28,443) 8/18/09NO. 31,746 State v. Kirby (COA 28,828) 7/15/09

certiorari granted But not yet suBMitted to the court:

(Parties preparing briefs) Date Writ IssuedNO. 31,101 State v. Montano (COA 28,002) 6/19/08NO. 31,191 State v. Schwartz (COA 28,349) 7/21/08NO. 31,218 State v. Henley (COA 27,925) 7/25/08NO. 31,315 D’Antonio v. Garcia (COA 27,681) 10/1/08NO. 31,287 Waterhouse v. Heredia (12-501) 1/6/09NO. 31,491 Ideal v. Burlington

Resources Oil & Gas (COA 29,025) 2/3/09NO. 31,526 State v. Phillips (COA 27,019) 2/23/09NO. 31,433 Romero v. Philip Morris,

Inc. (COA 26,993) 2/27/09NO. 31,100 Allen v. LeMaster (12-501) 3/13/09NO. 31,567 State v. Guthrie (COA 27,022) 3/24/09NO. 31,603 Guest v. Allstate Ins. Co. (COA 27,253) 4/2/09NO. 31,602 Allstate Ins. Co. v. Guest (COA 27,253) 4/2/09NO. 31,612 Ortiz v. Overland Express (COA 28,135) 4/20/09NO. 31,656 State v. Rivera (COA 25,798) 5/5/09NO. 31,686 McNeill v. Rice

Engineering (COA 29,207) 5/20/09NO. 31,717 State v. Johnson (COA 27,867) 6/17/09NO. 31,719 State v. Lara (COA 27,166) 6/17/09NO. 31,738 State v. Marlene C. (COA 28,352) 6/17/09NO. 31,723 State v. Mendez (COA 28,261) 6/23/09NO. 31,733 State v. Delgado (COA 27,192) 6/23/09NO. 31,724 Albuquerque Commons

v. City/Albuquerque (COA 24,026/24,027/24,042/24,425) 7/1/09NO. 31,732 State v. Smile (COA 27,338) 7/1/09NO. 31,739 State v. Marquez (COA 27,971) 7/1/09NO. 31,740 State v. McCorkle (COA 29,124) 7/1/09NO. 31,743 State v. Marquez (COA 28,938) 7/1/09NO. 31,741 State v. Gardner (COA 27,234) 7/1/09NO. 31,775 State v. Warren (COA 29,147) 7/15/09NO. 31,703 State v. Nez (COA 26,811) 7/23/09NO. 31,745 State v. Jackson (COA 28,107) 7/23/09NO. 31,813 State v. Soliz (COA 28,018) 7/29/09NO. 31,750 Kilgore v. Fuji (COA 27,470) 7/30/09NO. 31,840 State v. Garcia (COA 28,465) 8/11/09NO. 31,791 State v. Atcitty (COA 27,189/27,940/27,333) 8/12/09NO. 31,854 State v. Albarez (COA 29,468) 8/18/09NO. 31,812 State v. Sena (COA 24,156) 8/20/09NO. 31,891 State v. Gonzales (COA 29,297) 9/15/09NO. 31,907 Edward C. v.

City of Albuquerque (COA 27,864) 9/15/09NO. 31,909 State v. Rudy B. (COA 27,589) 9/15/09NO. 31,917 Edward C. v. Albuquerque

Baseball Club (COA 27,864) 9/15/09


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

certiorari granted and suBMitted to the court: Submission Date(Submission = date of oral argument or briefs-only submission)NO. 30,787 Cable v. Wells Fargo Bank

(On reconsideration) (COA 26,357) 12/15/08NO. 31,329 Kirby v. Guardian Life (COA 27,624) 2/9/09NO. 30,956 Davis v. Devon

COA 28,147/28,154) 2/9/09NO. 30,957 Ideal v. BP America

(COA 28,148/28,153) 2/9/09NO. 30,958 Smith v.

Conocophillips (COA 28,151/28,152) 2/9/09NO. 31,192 Reule Sun Corp.

v. Valles (On rehearing) (COA 27,254) 3/9/09

NO. 31,258 Marchstadt v. Lockheed (COA 27,222) 3/11/09NO. 31,153 State v. Wyman (COA 28,237) 3/25/09NO. 31,279 Lions Gate v. D’Antonio (COA 28,668) 4/13/09NO. 31,244 State v. Slayton (COA 27,892) 4/29/09NO. 31,374 Schultz v. Pojoaque

Tribal Police Dept. (COA 28,508) 5/11/09NO. 31,365 State v. Lucero (COA 27,364) 5/13/09NO. 30,766 State v. Jones (COA 27,342) 5/27/09NO. 31,325 Kersey v. Hatch (12-501) 8/10/09NO. 31,288 State v. Savedra

(COA 27,288/27,289/27,290) 8/11/09NO. 31,294 State v. Marquez (COA 27,735) 8/31/09NO. 31,416 Carlsbad Hotel

Associates v. Patterson (COA 27,922) 9/14/09NO. 31,539 McGary v. AMS Staff

Leasing (COA 28,867) 9/14/09NO. 31,308 State v. Sosa (COA 26,863) 9/15/09NO. 31,151 State v. Munoz (COA 26,956) 9/30/09

NO.31,245 Statev.Littlefield (COA27,504) 9/30/09NO. 31,637 Akins v. United Steel (COA 27,132) 10/13/09NO. 31,549 City of Santa Fe

v. Travelers Casualty (COA 28,944) 10/13/09NO. 31,186 State v. Bullcoming (COA 26,413) 10/14/09NO. 31,187 State v. Aragon (COA 26,185) 10/14/09NO. 31,510 State v. Smith (COA 27,704) 10/15/09NO. 31,480 City of Aztec v. Gurule (COA 28,705) 11/9/09NO. 31,224 State v. Harrison (COA 27,224) 11/9/09NO. 30,827 State v. Sims (COA 26,590) 11/10/09NO. 31,092 State v. Mailman (COA 27,966) 11/10/09NO. 31,117 State v. Moore (COA 28,243) 11/10/09NO. 31,430 State v. Ochoa (COA 28,175) 11/18/09NO. 31,360 State v. Morales (COA 26,969) 11/30/09NO. 31,546 Gomez v. Chavarria

(COA 28,072/28,073) 11/30/09NO. 31,328 Garcia v. State

(On rehearing) (12-501) 11/30/09

petition for Writ of certiorari denied:

NO. 31,799 Garcia v. Tapia (12-501) 9/28/09NO. 31,734 Santiago v. Tapia (12-501) 9/28/09NO. 31,780 Lacour v. Heredia (12-501) 9/28/09NO. 31,916 State v. Trujillo (COA 27,999) 9/28/09NO. 31,923 State v. Flores-Alvarez (COA 29,314) 9/28/09NO. 31,925 Oliver v. Walck (COA 29,366) 9/28/09NO. 31,930 State v. Trout (COA 29,512) 9/28/09NO. 31,933 State v. Colwell (COA 29,344) 9/28/09NO. 31,946 Ortega v. Williams (12-501) 9/28/09NO. 31,959 Gonzales v. Tapia (12-501) 9/28/09NO. 31,965 Walker v. Romero (12-501) 9/28/09

http://nmsupremecourt.nmcourts.gov


puBlished opinions

Date Opinion FiledunpuBlished opinions

No. 27400 1st Jud Dist Santa Fe CR-05-197, STATE v J ANDREZ (reverse and remand) 9/21/2009No.29116 5thJudDistChavesCR-07-478,STATEvJCASTILLO(affirm) 9/21/2009No.29229 1stJudDistSantaFeCR-07-731,STATEvARODRIGUEZ(affirm) 9/21/2009No.29472 12thJudDistOteroCR-08-253,STATEvGWISEHART(affirm) 9/21/2009No.28971 13thJudDistValenciaDM-07-184,NMPHARMACYvNMCHIROPRACTIC(affirm) 9/22/2009No.29337 3rdJudDistDonaAnaCR-07-1313,STATEvRHOLLAND(affirm) 9/22/2009No.29355 9thJudDistRooseveltCV-07-115,STATEvSGARRETT(affirm) 9/22/2009No.29618 1stJudDistSantaFeCV-07-651,SHYMANSvSAFECOINS(affirm) 9/22/2009No.27552 11thJudDistSanJuanJR-06-371,JR-06-408,STATEvJONATHOND(affirm) 9/23/2009No. 29545 3rd Jud Dist Dona Ana PQ-08-37, GUARDIANSHIP OF L CRUZ-CALDERO (dismiss) 9/23/2009No.29645 12thJudDistLincolnCV-07-118,SGALLEGOSvJGONAZALES(affirm) 9/23/2009

Gina M. Maestas, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fé, NM 87504-2008 • (505) 827-4925

effeCTive sepTeMber 25, 2009

opinions

as updated By the clerk of the neW Mexico court of appeals

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

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


clerk’s certificatesfroM the neW Mexico supreMe court

Mark StandridgeJarmie & Associates277 E. Amador, Ste. 201Las Cruces, NM 88001575-647-1399575-523-4911 (telecopier)[email protected]

Susan SullivanN.M. Human Services Department1000 Eighteenth Street, NWAlbuquerque, NM 87104-1968505-222-9927505-222-9944 (telecopier)[email protected]

Anne L. TaylorThe Disciplinary BoardPO Box 180920 First Plaza, NW, Ste. 710 (87102)Albuquerque, NM 87103-1809505-842-5781505-766-6833 (telecopier)[email protected]

Hilary Chandler TompkinsU.S. Department of the InteriorOffice of the Solicitor1849 C Street, NW, MS 6415Washington, DC 20240202-208-4423

Elizabeth A. TrickeyN.M. Department of HealthPO Box 261101190 St. Francis Drive, Ste. N-4095Santa Fe, NM 87502-6110505-476-3542505-827-2930 (telecopier)[email protected]

Linda VegaThe Vega Law Firm6666 Harwin, Ste. 320Houston, TX 77036713-784-5252713-784-5858 (telecopier)[email protected]

Christina Andrea VigilLaw Office of Christina A. Vigil507 Roma Avenue, NWAlbuquerque, NM 87102505-242-1796505-242-8564 (telecopier)

Gilbert J. VigilLaw Office of Gilbert J. Vigil507 Roma Avenue, NWAlbuquerque, NM 87102505-242-1796505-242-8564 (telecopier)

Vincent J. WardU.S. Department of the InteriorOffice of the Solicitor1849 C Street, NW, MS 6415Washington, DC 20240202-208-4423

Elizabeth Rodke Washburn5016 Cresta Del Sur Ct, NEAlbuquerque, NM [email protected]

John D. WatsonN.M. Legal Aid406 N. Sixth StreetSocorro, NM 87801575-322-7100575-835-8935 (telecopier)[email protected]

Felicia C. WeingartnerLaw Offices of Felicia C. WeingartnerPO Box 7627500 Tijeras, NW (87102)Albuquerque, NM 87194-7627505-842-8057505-843-7129 (telecopier)[email protected]

Joel L. WidmanThe Disciplinary BoardPO Box 180920 First Plaza, NW, Ste. 710 (87102)Albuquerque, NM 87103-1809505-842-5781505-766-6833 (telecopier)[email protected]

Benjamin WiesenfeldScout Investment Advisors1010 Grand BoulevardKansas City, MO [email protected]

Jacqueline M. WoodcockConklin, Woodcock & Ziegler, P.C.320 Gold Avenue, SW, Ste. 1111Albuquerque, NM 87102505-224-9160505-224-9161 (telecopier)[email protected]

Joel Matthew YoungThe Brown Law Firm2901 Juan Tabo, NE, Ste. 208Albuquerque, NM 87112505-292-9677505-292-9680 (telecopier)[email protected]

D. Diego Zamora303 Paseo de PeraltaSanta Fe, NM 87501505-982-1873505-982-8012 (telecopier)[email protected]

Joseph Mio ZebasZebas Law Firm, L.L.C.PO Box 1675414 N. TurnerHobbs, NM 88241-1675575-393-1024575-393-1234 (telecopier)

John K. ZieglerConklin, Woodcock & Ziegler, P.C.320 Gold Avenue, SW, Ste. 1111Albuquerque, NM 87102505-224-9160505-224-9161 (telecopier)[email protected]

Clerk’s CertifiCate of admission

On August 24, 2009Ryan HarriganMelendres, Melendres & Harrigan1017 Fifth Street, NWAlbuquerque, NM 87102505-243-8310505-243-9271 (telecopier)[email protected]

Clerk’s CertifiCate of reinstatement to aCtive status

As of August 24, 2009George P. Marquez, Jr.PO Box 5747Santa Fe, NM 87502-5747

As of August 21, 2009Michael Davis MurphyU.S. District CourtPO Box 669Albuquerque, NM 87103-0669

Effective August 18, 2009Herman E. OrtizPO Box 75Garfield, NM 87936-0075

Clerk’s CertifiCate of Change

to inaCtive status

Effective August 12, 2009Anthony R. ApodacaApodaca Law FirmPO Box 1506Los Lunas, NM 87031-1506

Effective August 11, 2009Amanda Jane Cox2225 Washington Street, # 2San Francisco, CA 94115-1947

Clerk’s CertifiCate of WithdraWal

Effective August 25, 2009Charles D. AlsupPO Box 518Clayton, NM 88415-0518

Clerk’s CertifiCate of name, address, and/or

telephone Changes

Clerk’s CertifiCate DateD august 24, 2009


















clerk’s certificates

Clerk’s CertifiCate of indefinite suspension

from membership in the state bar of neW mexiCo

Effective August 26, 2009John W. FiskPO Box 1866Carlsbad, NM 88221-1866575-885-3500575-885-6138 (telecopier)

Clerk’s CertifiCate of summary suspension from membership in the state

bar of neW mexiCo

Effective August 18, 2009Nettie M. Griffin308 East 17th LanePortales, NM 88310575-607-7199575-356-8543 (telecopier)

Effective August 26, 2009Elliot L. Weinreb9908 Shirza Road, S.W.Albuquerque, NM 87121-5348505-883-0895

Clerk’s CertifiCate of disbarment

On August 19, 2009Rudy A. OrtizPO Box 26191800 Gold Avenue, SW (87102)Albuquerque, NM 87125-6191505-242-1890505-242-6455 (telecopier)[email protected]

in memoriam

As of August 2, 2009Eloy F. Martinez855 Van PattenTruth or Consequences, NM 87901-2362

Clerk’s CertifiCate of CorreCtion

Clerk’s Certificate dated July 24, 2009, has an incorrect e-mail address for the follow-ing attorney:Anita Holly ReinaCity of AlbuquerqueOffice of Administrative HearingsPO Box 1293200 Third Street, NW (87102)Albuquerque, NM 87103-1293505-768-4700505-768-3093 (telecopier)[email protected]

Clerk’s CertifiCate DateD september 21, 2009

Clerk's CertifiCate of admission

Tonie Jessica Abeyta1401 Pennsylvania Street, NE, #1018Albuquerque, NM 87110-7508

Kimberly L. Alderman925A Paseo Del Pueblo Sur, Ste. 101Taos, NM 87571-5967

Joshua A. Allison305 Hermosa Drive, NEAlbuquerque, NM 87108-1025

Daniel Murray Alsup1614 Hermosa Drive, NEAlbuquerque, NM 87110-5627

Matthew Neal Andrasko2012 Gerry DriveClovis, NM 88101-4511

Jose M. Arguello8023 Smokerise Avenue, NWAlbuquerque, NM 87120-6507

Lauren L. Armstrong2903 Q Street, NW, Apt. BWashington, D.C. 20007-3010

Steven Kyle Armstrong10516 La Paz Drive, NWAlbuquerque, NM 87114-4832

Erinna Marie AtkinsPO Box 235Alamogordo, NM 88311–0235

Heba A. Atwa431 Gene Avenue, NWAlbuquerque, NM 87107-5320

Robyn R. Baker2841 La Luz Circle, NERio Rancho, NM 87144-3736

Kevin J. Banville3210 North Mountain View Dr.Farmington, NM 87401-4012

Matthew Lee Baughman12 Los Lomas CircleSandia Park, NM 87047-2406

Justin A. Behar2718 Burton Avenue, SEAlbuquerque, NM 87106-3002

Neil R. BellNM Supreme CourtPO Box 848Santa Fe, NM 87504-0848505-827-4892505-827-4837 (telecopier)

Thomas E. Blakeney1214 ½ New York AvenueAlamogordo, NM 88310-6728

Emma D. Boawn3939 Rio Grande Boulevard, NW, Unit 62Albuquerque, NM 87107-3152

Annette Nikki Borchardt4728 North Horseshoe DriveCedar City, UT 84721-9685

Gary W. Boyle15 Spirit CourtSanta Fe, NM 87506-1103

Burt L. Burnett24 Winged Foot Circle WestAbilene, TX 79606-5026

Timothy C. Callaway801 Locust Place, NE, #1236Albuquerque, NM 87102-5607

Judith B. Calman2651 Favor Road, SW, #A-1Marietta, GA 30060-5212

Matthew Lee CampbellCuddy & McCarthy, L.L.P.7770 Jefferson Street, NE, Suite 305Albuquerque, NM 87109-5912505-888-1335505-888-1369 (telecopier)

Douglas H.M. CarverPO Box 35801Albuquerque, NM 87176-5801

Amber Cash711 West Jaffa StreetRoswell, NM 88203-3515

Paul Martin Cash711 West Jaffa StreetRoswell, NM 88203-3515

Breanon Cole805 Quincy Street, NEAlbuquerque, NM 87110-6327

Marina Cordova702 Columbia Street, #BSanta Fe, NM 87505-4208

Zachary Cormier9330 Carmel Avenue, NEAlbuquerque, NM 87122-3022

Blair Dancy9600 Great Hills Trail, Ste. 300 WestAustin, TX 78759-5682

Kendrick Winsor Dane110 Richmond Drive, SEAlbuquerque, NM 87106-2236

Thomas S. Dean1602 Yucca AvenueFarmington, NM 87401-7353

Paul Michael Dominguez3797 Candelarias Lane, NWAlbuquerque, NM 87107-1100





Dahlia Renata Dorman4416 Rancho Largo Road, NWAlbuquerque, NM 87120-5361

James E. Dory-Garduño301 4th Avenue, SWRio Rancho, NM 87124-0796

Kymberleigh Grace Dougherty11311 Campo del Oso Ave., NEAlbuquerque, NM 87123-1273

Tiffany Elaine Dowell6800 Vista del Norte Road, NE, #1624Albuquerque, NM 87113-1320

Joshua Marc Dwyer4517 Camino Dos VidasLas Cruces, NM 88012-7614

Spencer L. Edelman700 Fruit Avenue, NW, #GAlbuquerque, NM 87102-2083

Josh E. Eden5704 Morgan Lane, NWAlbuquerque, NM 87120-2249

Paul R. EichbauerPO Box 3295Farmington Hills, MI48332-3295

Alison Endicott-Quiñones200 East Navajo StreetFarmington, NM 87401-6110

Shoshanah D. Epstein7000 Armand Road, NWAlbuquerque, NM 87120-4949

Monica C. EwingSutin, Thayer & Browne, P.C.6565 Americas Parkway, NE, Ste. 1000 (87110-8181)PO Box 1945Albuquerque, NM 87103-1945505-883-2500505-888-6565 (telecopier)

Brent M. Ferrel3432 Flat Iron Road, NERio Rancho, NM 87144-6397

Patrick Scott Field2320 East Marshall AvenuePhoenix, Arizona 85016-3117

Sarah E. FieldOffice of the Public Defender800 Pile Street, Suite AClovis, NM 88101-6644575-769-1991575-763-5882 (telecopier)

Lucas N. Frank2214 North 11th StreetPhoenix, AZ 85006-1633

Shonn Galassini2100 Mitchell Street, #10Clovis, NM 88101-4358

Jacob Adam Gallegos8935 4th Street, NW, #1Albuquerque, NM 87114-1765

Matthew Gandert7605 Spring Avenue, NEAlbuquerque, NM 87110-7329

Amanda Renee Garcia3895 4th Street, NWAlbuquerque, NM 87107

Monnica GarciaBowles & Crow201 3rd Street, NW, Ste. 1370 (87102)PO Box 25186Albuquerque, NM 87125-5186505-217-2680505-217-2681 (telecopier)

Jose Luis Garriga311 North Grant AvenueOdessa, Texas 79761-5117

Christopher M. GattonLaw Office of George “Dave” Giddens, P.C.10400 Academy, NE, Ste. 350Albuquerque, NM 87111-7372505-271-1053505-271-4848 (telecopier)

Penny E. GilbertOffice of the District Attorney327 Sandoval Street (87501)PO Box 2041Santa Fe, NM 87504-2041505-827-5000505-827-5076 (telecopier)Jedidiah J. Glazener1024 2nd Street, NWAlbuquerque, NM 87102-2216

Justin A. Gonzalez11311 Campo del Oso Ave., NEAlbuquerque, NM 87123-1273

Daniel E. GowerOffice of the Public Defender506 South Main Street, Ste. 700Las Cruces, NM 88001-1237575-524-6200575-524-6209 (telecopier)

Louis A. Gross1575 Redbud Boulevard, Ste. 200McKinney, Texas 75069-3385

Kelley Leigh Grosso9440 Lexington Ave., NE, #CAlbuquerque, NM 87112-1393

Angelica Hall3110 Manzano Street, NEAlbuquerque, NM 87110-1966

Benjamin Hancock5345 Wyoming Boulevard, NE, Ste. 203Albuquerque, NM 87109-3148

Christopher K. HarrisOffice of the Public Defender1601 North Turner Street, Suite 300 (88240-4332)PO Box 1317Hobbs, NM 88241-1317575-397-5230575-393-5803 (telecopier)

James Allen Hayes891 South Melendres StreetLas Cruces, NM 88005-2933

Jennifer M. Heim32 Bent Tree Road, #ARoswell, NM 88201-9550

Clayton S. Hightower511 West College Boulevard, # B-10Roswell, NM 88201-5123

Leon F. Howard, IIIOffice of the District Attorney327 Sandoval Street (87501)PO Box 2041Santa Fe, NM 87504-2041505-827-5000505-827-5076 (telecopier)

Kelly Huddleston1418 Miracerros Loop SouthSanta Fe, NM 87505-4024

Leora Sue HutchinsOffice of the District Attorney845 North Motel Boulevard, Suite DLas Cruces, NM 88007-575-524-6370575-524-6379 (telecopier)

Jennifer L. Ivey966 South University Blvd.Denver, CO 80209-4735

Heather S. Jaramillo115 8th Street, SWAlbuquerque, NM 87102-3001

John W. Johnson, III5816 Stratford Avenue, NWAlbuquerque, NM 87114-4810

Randi N. Johnson8100 Barstow Street, NE, #7103Albuquerque, NM 87122-2863

Patricia J. Jonesc/o Michael Rivera107 Plaza Garcia, #E-10Taos, NM 87571

Zachary Jones1709 Lead Avenue, SE, #8Albuquerque, NM 87106-

Esteli C. Juarez9251 Eagle Ranch Road, NW, #822Albuquerque, NM 87114-6054

Megan Mares Kalm8604 Avenales Avenue, NEAlbuquerque, NM 87111-2312

Julie KesterPO Box 16543Las Cruces, NM 88004-6543

Salim A. Khayoumi5400 Jason’s Way, NEAlbuquerque, NM 87111-6300

Julianne KoobKennedy Law Firm1000 2nd Street, NWAlbuquerque, NM 87102-2216505-244-1400505-244-1406 (telecopier)

Hal B. Landrum, Jr.PO Box 701Arroyo Seco, NM 87514-0701



Steven J. Laurent1475 Central Avenue (87544)PO Box 20Los Alamos, NM 87544-0020

Ronald Vincent LoLordo4158 Cheyenne CircleSanta Fe, NM 87507-4005

César R. Lozano, Jr.1203 Kiriaka DriveEagle Pass, TX 78852-5510

Christopher Paul Lucero4609 Lariat Avenue, NWAlbuquerque, NM 87120-2549

Alonzo Maestas3405 Calle Cuervo, NW, #121Albuquerque, NM 87114-9225

Joachim Biagi Marjon308 La Plata Road, NWAlbuquerque, NM 87107-5325

Carrie A. MartellPO Box 4924Albuquerque, NM 87196-4924

Annie Lynn Lilienthal MasonPO Box 2111Las Cruces, NM 88004-2111

Jaclyn M. McLean218 Montezuma AvenueSanta Fe, NM 87501-2625

Mary M. McMahon2200 East 1st Street, #1114Alamogordo, NM 88310-3416

Robert Francis Medina135 Capitol Square DriveZia Pueblo, NM 87053-6013

Adam D. Melton5751 West Geronimo StreetChandler, Arizona 85226-4445

Patrick M. Melvin907 East Fiesta DriveCarlsbad, NM 88220-6567

John Eddy Morrison2920 San Diego Avenue, SEAlbuquerque, NM 87106-2911

Amanda Navarro4432 La Paloma Road, NWAlbuquerque, NM 87120-5359

Clara M. Nevarez602 Weinrich Road #4Las Cruces, NM 88007-4857

Alan J. NicholasOffice of the Public Defender1601 North Turner Street, Suite 300 (88240-4332)PO Box 1317Hobbs, NM 88241-1317575-397-5230575-393-5803 (telecopier)

Grant Warren Nichols1201 S. Courthouse Rd. #821Arlington, VA 22204-4645

Nathan T. Nieman1301 Girard Boulevard, SEAlbuquerque, NM 87106-2905

Ethan D. Nissani138 West Coronado RoadSanta Fe, NM 87505-2610

Sally A. Paez1247 Valle Alto Court, NWAlbuquerque, NM 87107-2731

Gabriel S. Perez5817 Acacia Circle, #1118El Paso, TX 79912-4898

Kevin Daniel Pierce3409 Delano Avenue, NEAlbuquerque, NM 87106-1240

Krista Pietschman309 Rio Grande Blvd, NW, #3Albuquerque, NM 87104-1592

Justin Paul Pizzonia1848 Cam Fella Street, SEAlbuquerque, NM 87123-2391

Eduardo Andres Provencio624 Tulane Drive, NEAlbuquerque, NM 87106-1347

Darren Arik PrumPO Box 81892Las Vegas, NV 89180-1892

Jesse Quackenbush620 South Taylor Street, Suite 301Amarillo, TX 79101-2436

Stormy K. RalstinPO Box 8405Albuquerque, NM 87198-8405

Carolina Martin RamosPO Box 642Placitas, NM 87043-0642

Lauren Anne Reed8401 Helen Hardin Street, NEAlbuquerque, NM 87122-2827

Katrina Richards8604 Las Camas Road, NEAlbuquerque, NM 87111-2343

Patricia B. Rivera-Crouch5301 Veronica Drive, NEAlbuquerque, NM 87111-1949

Quela RobinsonMoody & Warner, P.C.4169 Montgomery Blvd. NEAlbuquerque, NM 87109-6742505-944-0033505-944-0034 (telecopier)

Jennifer Rodriguez Rodgers4935 Story Rock Street, NWAlbuquerque, NM 87120-3703

Matthew Legan Sanchez3107 Sierra Drive, NEAlbuquerque, NM 87110-1740

Kristin Sanderson3901 Indian School Road, NE, #B-404Albuquerque, NM 87110-3867

Benny Santiago, Jr.10005 North Hyacinth AvenueTampa, FL 33612-6955

Brandon H. Sargent5353 Memorial Drive, Unit 2024Houston, TX 77007-8267

Elena P. Serna2321 Brother Abdon WaySanta Fe, NM 87505-6925

Rahul Sharma1409 Dartmouth Drive, NEAlbuquerque, NM 87106-1816

Christina Courtney Sheehan9227 Flushing Meadows Drive, NEAlbuquerque, NM 87111-5879

Andrew M. Shipp701 West Country Club RoadRoswell, NM 88201-5212

Michael G. Smith321 Aliso Drive, NEAlbuquerque, NM 87108-1004

Jasmine Jade Solomon210 Montclaire Drive, SE, #3Albuquerque, NM 87108-2639

Kevin L. Soules902 Quincy Street, NEAlbuquerque, NM 87110-6330

Athena P. SpencerOffice of the District Attorney327 Sandoval Street (87501)PO Box 2041Santa Fe, NM 87504-2041505-827-5000505-827-5076 (telecopier)

Joshua Cody Spencer1009 Montana AvenueEl Paso, Texas 79902-5411

Christopher M. SpinnerOffice of the Public Defender300 Gossett DriveAztec, NM 87410-2436505-334-1883505-334-0612 (telecopier)

Richard Wayne Staff1400 Louisiana, Floor 37Houston, TX 77002-7306

Deborah R. Stambaugh323 13th Street, NW, #AAlbuquerque, NM 87102-1833

Jenna Michele StewartOffice of the District Attorney327 Sandoval Street (87501)PO Box 2041Santa Fe, NM 87504-2041505-827-5000505-827-5076 (telecopier)

Kelly A. Stout403 Morningside Drive, NEAlbuquerque, NM 87108-1037

Sherisse L. Summers205 12th Street, SWAlbuquerque, NM 87102-2809

Jay Sumner6565 Americas Parkway, NE, Ste. 200Albuquerque, NM 87110-8172



J. Adam Tate2725 Tulipan Loop, SERio Rancho, NM 87124-2587

Zachary T. Taylor1029 West Houghton StreetSanta Fe, NM 87505-8850

Nicole L. Thomas3920 Tierra Roman DriveEl Paso, TX 79938-4331

Koo Im Tong2512 Veranda Road, NWAlbuquerque, NM 87107-2939

Jennifer H. Trachte3348 Vallejo StreetDenver, Colorado 80211-3439

Jesse Austin TraugottDNA–People’s Legal Services, Inc.PO Box 306Window Rock, AZ 86515-0306928-871-4151928-871-5036 (telecopier)

DeAnza ValenciaPO Box 27104Albuquerque, NM 87125-7104

Peter Joseph Valencia, IIIOffice of the District Attorney327 Sandoval Street (87501)PO Box 2041Santa Fe, NM 87504-2041505-827-5000505-827-5076 (telecopier)

Kyle Edward WackenheimPO Box 40527Albuquerque, NM 87196-0527

Beth Watson511 West College Boulevard, # A-10Roswell, NM 88201-5122

Geoffrey D. WhiteButt, Thornton & Baehr, P.C.4101 Indian School Road, NE, Ste. 300-S (87110-3989)PO Box 3170Albuquerque, NM 87190-3170505-884-0777505-889-8870 (telecopier)

Christopher P. Winters7216 Gros Ventre Court, NWAlbuquerque, NM 87114-3446

Alan P. Woodruff10304 Calle Hidalgo, NWAlbuquerque, NM 87114-4843

Shona Zimmerman-Burnett903 Forrester Avenue, NWAlbuquerque, NM 87102-1905


pending proposed rule Changes

Comment Deadline1-096 Challenge of nominating petition

(Rules of Civil Procedure for the District Courts) 09/08/09

3-202 Summons (Rules of Civil Procedure for the Metropolitan Courts) 08/10/09

9-102B Certificateofrecusal(Criminalforms) 07/27/099-103B Notice of recusal (Criminal forms) 07/27/094-225 Court’scertificateofservice(Civilforms) 07/27/099-222 Court’scertificateofservice

(Criminal forms) 07/27/094-221 Certificateofservice(Civilforms) 07/27/094-221A Party’scertificateofservice(Civilforms) 07/27/099-221 Certificateofservice(Criminalforms) 07/27/099-221A Party’scertificateofservice

(Criminal forms) 07/27/094-102 Certificateofexcusalorrecusal

(Civil forms) 07/27/094-103 Notice of excusal (Civil forms) 07/27/094-104 Notice of recusal (Civil forms) 07/27/094-102A Certificateofexcusalorrecusal

(Civil forms) 07/27/094-103A Notice of excusal (Civil forms) 07/27/094-104A Notice of recusal (Civil forms) 07/27/094-104B Notice of assignment (Civil forms) 07/27/099-103C Notice of assignment (Criminal forms) 07/27/096-701 Judgment (Rules of Criminal Procedure

for the Magistrate Courts) 07/27/098-701 Judgment (Rules of Procedure

for the Municipal Courts) 07/27/096-703 Appeal (Rules of Criminal Procedure

for the Magistrate Courts) 07/27/098-703 Appeal (Rules of Procedure

for the Municipal Courts) 07/27/092-105 Assignment and designation of judges

(Rules of Civil Procedure for the Magistrate Courts) 07/27/09

6-105 Assignment and designation of judges (Rules of Criminal Procedure for the Magistrate Courts) 07/27/09

9-612 Order on direct criminal contempt (Criminal forms) 07/27/09

9-613 Judgment and sentence on indirect criminal contempt (Criminal forms) 07/27/09

9-614 Order on direct civil contempt (Criminal forms) 07/27/09

9-615 Order on indirect civil contempt (Criminal forms) 07/27/09

9-616 Conditional discharge order (Criminal forms) 07/27/09

9-617 Final order of discharge (Criminal forms) 07/27/099-618 Orderfindingnoviolationofprobation

(Criminal forms) 07/27/099-619 Orderfindingprobationviolationand

continuing sentence (Criminal forms) 07/27/099-620 Probation violation, judgment, and

sentence (Criminal forms) 07/27/0910-313.1 Representation of multiple siblings

(Children’s Court) 07/20/0910-343 Adjudicatory hearing; time limits;

continuances (Children’s Court Rules) 04/17/09

reCently approved rule Changes sinCe release of 2009 nmra

Effective Date

rules of civil procedure for the district courts

1-016 Pretrial conferences; scheduling; management. 05/15/09

1-026 General provisions governing discovery. 05/15/09 1-033 Interrogatories to parties. 05/15/091-034 Production of documents and things and

entry upon land for inspection and other purposes. 05/15/09

1-037 Failure to make discovery; sanctions. 05/15/091-038 Jury trial in civil actions. 12/15/081-045 Subpoena. 05/15/091-045 Subpoena. 08/07/091-045.1 Interstate subpoenas. 08/07/091-071.1 Statutory stream system adjudication suits;

service and joinder of water rights claimants; responses. 04/08/09

1-071.2 Statutory stream adjudication suits; stream system issues and expedited inter se proceedings. 04/08/09

1-071.3 Statutory stream adjudication suits; annual joint working session. 04/08/09

1-071.4 Statutory stream adjudication suits; ex parte contacts; general problems of administration. 04/08/09

1-071.5 Statutory stream adjudication suits; excusal or recusal of a water judge. 04/08/09

1-074 Administrative appeals; statutory review by district court of administrative decisions or orders. 12/15/08

1-075 Constitutional review by district court of administrative decisions and orders. 12/15/08

1-088 Designation by judge. 04/08/09

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

To view pending• proposed rule changes visit the New Mexico Supreme Court’s Web site: http://nmsupremecourt.nmcourts.gov/

To view recently • approved rule changes, visit the New Mexico Compilation Commission’s Web site: http://www.nmcompcomm.us/

effeCTive sepTeMber 28, 2009


http://www.nmcompcomm.us


1-096.1 Review of election recall petitions. 09/04/091-125 Domestic Relations Mediation Act

programs. 05/18/09

rules of civil procedure for the Magistrate courts

2-802 Garnishment. 12/31/08

civil forMs

4-505A Subpoena for production or inspection. 10/12/09 4-805 Application for writ of garnishment. 09/04/094-805B Application for writ of garnishment. 09/04/094-803 Claim of exemptions on execution. 05/06/094-805B Application for writ of garnishment. 12/31/084-808A Notice of right to claim exemptions

from execution. 10/12/09

rules of criMinal procedure for the district courts

5-104 Time. 05/06/095-121 Orders; preparation and entry. 05/06/095-207 Withdrawn. 04/06/09 5-604 Time of commencement of trial. 11/24/085-604 Time of commencement of trial. 09/01/095-614 Motion for new trial. 05/06/095-704 Death penalty; sentencing. 05/06/095-801 Modificationofsentence. 05/06/095-802 Habeas corpus. 05/06/09

rules of criMinal procedure for the Magistrate courts

6-108 Non-attorney prosecutions. 12/31/086-110A Audio and audio-visual appearances

of defendant. 12/31/086-113 Victim’s rights. 12/31/086-201 Commencement of action. 12/31/086-401 Bail. 12/31/086-403 Revocation of release. 12/31/086-502 Plea and plea agreements. 12/31/086-506 Time of commencement of trial. 01/15/096-703 Appeal. 01/15/09

rules of criMinal procedure for the Metropolitan courts

7-106 Excusal; recusal; disability. 01/15/097-110A Audio and audio-visual appearance

of defendant. 09/10/097-401 Bail. 02/02/097-502 Pleas and plea agreements. 09/10/097-506 Time of commencement of trial. 01/15/097-602 Jury trial. 01/15/097-703 Appeal. 01/15/09

rules of procedure for the Municipal courts

8-103 Rules; forms; fees. 12/31/088-109A Audio and audio-visual appearances

of defendant. 12/31/088-111 Non-attorney prosecutions. 12/31/088-201 Commencement of action. 12/31/088-401 Bail. 12/31/088-403 Revocation of Release. 12/31/088-501 Arraignment;firstappearance. 12/31/088-502 Pleas. 12/31/088-506 Time of commencement of trial. 01/15/098-703 Appeal. 01/15/09

criMinal forMs

9-102 Certificateofexcusalorrecusal. 09/10/099-102A Certificateofexcusalorrecusal. 09/10/099-406A Guilty plea or no contest plea proceeding. 12/31/08 9-408A Plea and disposition agreement. 12/31/08 9-604 Judgment and Sentence. 05/06/099-701 Petition for writ of habeas corpus. 05/06/09

rules of appellate procedure

12-202 Appeals as of right; how taken. 09/04/0912-302 Appearance, withdrawal or substitution

of attorneys. 05/06/09 12-305 Form of papers prepared by parties. 05/25/0912-308 Computation of time. 09/04/0912-404 Rehearings. 05/06/0912-501 Certiorari to the district court from denial

of habeas corpus. 05/06/0912-502 Certiorari to the Court of Appeals. 08/24/0912-505 Certiorari to the district court; decisions

on review of administrative agency decisions. 09/04/09

12-603 Appeals in actions challenging candidates or nominating petitions; primary or general elections; school board recalls andrecallsofelectedcountyofficials. 09/04/09

12-607 Certificationfromothercourts. 04/08/09

uJi civil

13-110A Instruction to jury. 12/31/0813-110B Oath to interpreter. 12/31/0813-1406 Strict products liability; care not an issue. 05/15/0913-1430 Breach of implied warranty of

merchantability. 02/02/0913-1636 Maliciousabuseofprocessdefined;

general statement of elements. 10/19/0913-1637 Malicious abuse of process;

“judicialproceeding”defined. 10/19/0913-1638 Malicious abuse of process;

“activeparticipation”defined. 10/19/0913-1639 Misuse of process; lack of probable cause. 10/19/0913-1639A Misuse of process; procedural impropriety,

defined. 10/19/0913-1640 Malicious abuse of process;

illegitimate motive. 10/19/09

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



13-1640A Malicious abuse of process; bifurcated trial; instructions prior to bifurcated claim of malicious abuse of process. 10/19/09

13-305 Causation (proximate cause). 02/02/0913-306 Independent intervening cause. 02/02/0913-820 Third-partybeneficiary;

enforcement of contract. 12/31/08

uJi criMinal

14-111 Supplemental jury questionnaire. 02/02/0914-120 Voir dire of jurors by court. 02/02/0914-203 Act greatly dangerous to life;

essential elements. 02/02/0914-2212 Aggravatedbatteryonapeaceofficer

with a deadly weapon; essential elements. 02/02/09 14-2217 Aggravatedfleeingalawenforcement

officer. 02/02/0914-5120 Ignorance or mistake of fact. 09/16/0914-5181 Self defense; nondeadly force by defendant. 09/16/0914-5183 Self defense; deadly force by defendant. 09/16/0914-5185 Self defense against excessive force

byapeaceofficer;nondeadlyforce by defendant. 09/16/09

14-5186 Self defense against excessive force byapeaceofficer;deadlyforce by defendant. 09/16/09

14-6018 Special verdict; kidnapping. 09/16/09

rules governing adMission to the Bar

15-301.2 Legal services provider limited law license for emeritus and non-admitted attorneys. 01/14/09

rules of professional conduct

16-104 Communication. 11/02/09

rules governing discipline

17-204 Required record. 01/01/10

rules for MiniMuM continuing legal education

18-203 Accreditation; course approval; provider reporting. 12/31/08

code of Judicial conduct

21-300 Ajudgeshallperformthedutiesofoffice impartially and diligently. 03/23/09

21-400 Disqualification. 09/04/09

rules governing the recording of Judicial proceedings

22-202 Licensingoffirmsengagedincourt reporting or tape monitoring. 09/10/09

22-201 Licensing of court reporters and monitors; power to administer oaths. 12/31/08

rules governing revieW of Judicial standards coMMission

27-104 Filing and service. 09/04/09

local rules for the second Judicial district court

LR2-123 Opposed motions and other opposed matters;filings;hearings. 06/01/09

LR2-504 Court clinic mediation program and other services for child-related disputes. 05/18/09

LR2-Form T Court clinic referral order. 05/18/09

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



advance opinions www.supremecourt.nm.orgfroM the neW Mexico supreMe court and court of appeals

Certiorari Denied, No. 31,805, July 29, 2009


Opinion Number: 2009-NMCA-096

Topic Index:Appeal and Error: Remand

Constitutional Law: Confrontation; and Suppression of EvidenceCriminal Procedure: Miranda Warnings; Motion in Limine;

and Motion to Suppress

STATE OF NEW MEXICO,Plaintiff-Appellant,

versusROBERTO HERNANDEZ,

Defendant-Appellee.No. 28,265 (filed: June 16, 2009)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYJ. MICHAEL KAvANAUGH, District Judge

opinion

Jonathan B. sutin, Judge

{1} The State appeals from the district court’s order of suppression pursuant to NMSA 1978, Section 39-3-3(B)(2) (1972), which authorizes state appeals from sup-pression rulings. At issue is the admissi-bility of out-of-court statements allegedly made by Defendant Roberto Hernandez, whichwereheardbyOfficerJ.Saavedra,as well as statements made by Officer Saavedra to others. We address (1) whether the court erred in excluding the statements as the tainted product of a Miranda viola-tion, and (2) whether the statements were otherwise properly excluded because their admission would violate Defendant’s right to confrontation. We reverse and remand for further proceedings.BACKGROUND{2} Threatening phone calls were made to aresidence,andgunshotswerefiredatthe

GARy K. KING Attorney GeneralANDREA SASSA

Assistant Attorney GeneralSanta Fe, New Mexico

for Appellant

HUGH W. DANGLERChief Public DefenderKARL ERICH MARTELL

Assistant Appellate DefenderSanta Fe, New Mexico

for Appellee

residence multiple times, following which the threatening phone calls would resume. Apparently soon after one of these calls, the police came to the residence, and moments after their arrival, the phone rang. Several occupants of the home recognized the iden-tifiedphonenumberasthatofDefendant.OfficerSaavedraanswered thephoneandengaged in a brief conversation with the caller.Theofficerasked“Who’sthis?”andthe caller hung up. Approximately half a minute later, the phone rang again and the officeragainansweredit.Duringthecourseof the conversation, and prior toOfficerSaavedra identifying himself as a police of-ficer,thecallerapparentlymadeinculpatoryremarks, including identifying himself as “Roberto” and the shooter. Edgar Luna was standingnearOfficerSaavedra andheardsome of the caller’s statements. Officer Saavedra, contemporaneous to the caller’s remarks, made statements to the occupants of the house that purported to relay portions of the telephone conversation. The State

asserts that Defendant was the caller, which Defendant denies. At the time of the court proceedings below,Officer Saavedrawasdeployed to Iraq and unavailable to testify.{3} The district court held a pretrial motions in limine hearing and considered the admis-sibility of (1) the caller’s statements to Of-ficerSaavedra,includingthosethatwereap-parentlyoverheardbyLuna,and(2)OfficerSaavedra’s statements to the occupants of the house that were made contemporaneous to his conversation with the caller. At the hear-ing, the court ruled that all of the statements were inadmissible because the caller was not advised of his rights as provided in Miranda v. Arizona, 384 U.S. 436, 479 (1966). Spe-cific toOfficerSaavedra’s statements, thecourt additionally acknowledged that the Miranda ruling was “interconnected” to an analysis of Defendant’s right to confronta-tion under Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The court’s resultant written order excludes all of the statements at issue as products of Miranda violations. We review the court’s suppression order pursuant to a de novo standard of review. See State v. Cassola, 2001-NMCA-072, ¶ 2, 130 N.M. 791, 32 P.3d 800 (reviewing the facts under a substantial evidence standard and reviewing the district court’s application of the law to those facts de novo). DISCUSSIONThe Court Erred in Excluding the Statements Based on Miranda Violations{4} Case law provides that a Miranda warning is required when the suspect is in-terrogated and in custody. State v. Cooper, 1997-NMSC-058, ¶¶ 33-40, 124 N.M. 277, 949P.2d660.Inthepresentcase,specifi-cally relating to the custody requirement, thecourt’sordersetsforthitsfindingthatthe caller “at the time of that phone conver-sation . . . was not in police custody and was free at any time to get off of the phone.”{5} We agree with the court’s finding, given that the caller voluntarily initiated the phone calls, could have and did terminate the phone calls on his own initiative, and was not in any way restricted in his freedom of movement. See generally State v. Wilson, 2007-NMCA-111, ¶ 23, 142 N.M. 737, 169 P.3d 1184 (explaining that, in assessing whether an individual was in custody for Miranda purposes, “the court must apply an objective test to resolve the ultimate in-quiry: was there a formal arrest or restraint

http://www.supremecourt.nm.org


of freedom of movement of the degree associated with a formal arrest” (internal quotation marks and citation omitted)), cert. denied, 2007-NMCERT-008, 142 N.M. 435, 166 P.3d 1089. We consider also that the caller was not questioned about his location during the telephone conversation and that the caller was not told hewas speaking to anofficer untilnear the end of the conversation. See State v. Griffin, 116 N.M. 689, 698, 866 P.2d 1156, 1165 (1993) (citing with approval the holding that “Miranda warnings [are] not required when suspect is unaware he isspeakingtolawenforcementofficerandgives a voluntary statement”). In short, because the caller was not in custody, we hold that the court erred in ruling that the statements were inadmissible based on Miranda violations. See State v. Snell, 2007-NMCA-113, ¶ 10, 142 N.M. 452, 166 P.3d 1106 (recognizing that Miranda warnings are only necessary when a person is in custody at the time of interrogation), cert. denied by N.M. v. Snell, 129 S. Ct. 626 (2008). Remand Is Necessary Because the Record Is Not Sufficiently Developed to Assess Whether Admission of the Statements at Issue Would Violate Defendant’s Right to Confrontation{6} In apparent anticipation that we would reverse the court’s Miranda ruling, Defen-danturgesthisCourttononethelessaffirmon a “right for any reason” analysis. See generally State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d 828 (statingthatanappellatecourtwillaffirma district court’s decision if it is right for any reason, as long as it is not unfair to the appellant). In this context, Defendant argues that the order suppressing evidence is affirmable because admission of thestatements at issue would violate his Sixth Amendment right to confrontation. See Crawford, 541 U.S. at 53-57 (providing that testimonial hearsay must be excluded when the declarant is unavailable and there has been no prior opportunity for cross-examination by the defendant, regardless of whether such statements are deemed re-liable by the court); State v. Ortega, 2008-NMCA-001, ¶¶ 14-33, 143 N.M. 261, 175 P.3d929(filed2007)(applyingCrawford in a confrontation-clause analysis). We in turn address the statements allegedly made by Defendant, which were heard byOfficerSaavedra,andthosestatementsmadebytheofficer toothersduringthetelephone conversations.

Defendant’s Statements{7} The State broadly and generally asserts that the statements made by the caller are admissible as those made by Defendant as a party opponent. In the abstract, we agree that party admissions do not present confrontation concerns because Crawford applies to testimonial hearsay evidence and because Rule 11-801(D)(2)(a) NMRA pro-vides that admissions by party opponents are not hearsay. See State v. Henderson, 2006-NMCA-059, ¶ 13, 139 N.M. 595, 136 P.3d 1005; State v. Castillo-Sanchez, 1999-NMCA-085, ¶¶ 22-23, 127 N.M. 540, 984 P.2d 787 (applying Rule 11-801(D)(2)(a) and rejecting the defendant’s argument that his own statement could violate his right to confront witnesses against him). As a practical matter, however, consideration needs to be given to the vehicle by which the State intends to admit the alleged party admissions. Because Defendant contests admission of the statements and denies being the caller making such statements, presumably he is not the vehicle by which the State would admit the alleged party admissions. This leaves three potential re-mainingvehicles:OfficerSaavedra,Luna,andOfficerSaavedra’spolicereport.{8} AsforOfficerSaavedra,whilethecall-er’s statements perhaps could be admitted throughtheofficer’stestimonygiventhathe ostensibly heard such statements, due to OfficerSaavedra’sunavailabilitythiswasnot an option. His absence problematically deprived Defendant of the safeguard of cross-examiningOfficerSaavedra.Withoutthis safeguard, it would be patently unfair for the State to simply assert that tendered party admissionsweremade toOfficerSaavedra without providing Defendant the opportunity to cross-examine the of-ficer to test his reliability as the vehiclefor admission—for example, questioning OfficerSaavedra’scredibility,theaccuracyof what he allegedly heard, and the circum-stances under which the alleged statements were made. See generally Mathis v. State, 112 N.M. 744, 748, 819 P.2d 1302, 1306 (1991) (recognizing that the “right of cross-examination is a part of the constitutional right to be confronted with the witnesses against one” (internal quotation marks and citation omitted)). We disagree with the State’s assertion that it can simply allege thatpartyadmissionsweremadetoOfficerSaavedra and admit those alleged state-mentswithoutmakingOfficer Saavedraavailable for cross-examination.{9} WithoutOfficerSaavedraasawitness,another potential vehicle by which to admit

the alleged party admissions is through the testimony of Luna who apparently overheard the caller make some or all of thestatementsinquestion.UnlikeOfficerSaavedra, presumably Luna is available to testify and thus would be subject to the safeguard of cross-examination. However, as noted, Defendant denies being the caller. In such instance, a remand is necessary for the district court to consider whether the State can make a threshold showing of au-thentication that Defendant was the caller. See Rule 11-104(A) NMRA (providing that preliminary questions concerning the ad-missibility of evidence shall be determined by the court); State v. Garcia, 110 N.M. 419, 425, 796 P.2d 1115, 1121 (Ct. App. 1990) (holding that the identity of the caller is a preliminary question under Rule 11-104(A), (B)). To meet this threshold level of admissibility, the State must present authentication or identification evidence“sufficient to support a finding that thematter in question is what its proponent claims.” Rule 11-901(A) NMRA; State v. Wesson, 83 N.M. 480, 482, 493 P.2d 965, 967 (Ct. App. 1972) (holding that testimony concerning a telephone conversation that the witness had with the defendant was admissible where the witness testified unequivocally that he recognized the de-fendant’s voice over the telephone). In the event the State makes a threshold showing of authentication, then ultimately the issue of the caller’s identity will be a matter for the jury to decide. See State v. Martinez, 2007-NMSC-025, ¶¶ 19-20, 141 N.M. 713, 160 P.3d 894 (stating that “[w]hen using Rule 11-104(A) to determine whether evidence is admissible, the trial court need onlybesatisfiedbyapreponderanceoftheevidence that the foundational require-ment has been met” and stating that under Rule 11-104(B), the jury is charged with determining authentication and personal knowledge of the witness).{10} Defendant asserts that the State failed to “adequately preserve any facts regarding . . . Luna’s purported testimony” and thus suggests that it would be inap-propriate or unfair to remand to allow the State such an opportunity. We disagree. A more accurate characterization of what happened before the district court is that the State was not provided an opportunity to present Luna as a vehicle for admission, despite its request. In this regard, a review of the hearing transcript indicates that the court acknowledged that Luna’s testimony “would have to undergo . . . its own foun-dational requirement for admission” and,


in response, the prosecutor stated, “if [the court] want[s] to get into that now or wait until [Luna] comes up to testify . . . [.]” The statement to the court was interrupted at that point by defense counsel. Relevant to this, the prosecutor indicated that Luna would be able to “positively identify . . . Defendant’s voice” and that Defendant’s numberwasreflectedonthecalleridenti-ficationdevice.{11} Despite the prosecutor’s efforts, however, ultimately the court did not pro-vide the prosecutor with an opportunity to present evidence authenticating Defendant as the caller. Instead, the district court agreed with defense counsel’s arguments that the State could not rely on Luna’s testimony to “circumvent” the Miranda violations and that “if Miranda applie[d] to the statements made to the police, this also applie[d] to the statements that are tainted and were heard by other civilians.” We lastly note that, in response to the district court’s view of Miranda, the prosecutor requested a break to “look at the case law and talk to the other officerswhowerethere.” And while the court afforded the prosecutor “fiveminutes” to do so, thebreak was given to allow the prosecutor to research Miranda, and not—as suggested by Defendant—to “secure [the State’s] witness[],”referringspecificallytoLuna.Accordingly, we conclude that it is ap-propriate on remand for the State to again attempt to admit Defendant’s alleged state-ments through Luna’s testimony, assuming that the State can satisfy the authentication foundational requirements as noted earlier in this opinion. {12} Finally, the third potential vehicle by which to admit Defendant’s alleged party admissions is through Officer Saavedra’s police report, which may refer to some of the statements made by the caller. Although recognized as a potential vehicle below, it is not clear whether the State intends to move to admit the police report. Moreover, because the court relied on Miranda to exclude all statements, the court never specifically consideredhowthe report fares under a Crawford analysis. For this reason, we remand with instruc-tions that, if on remand the State tenders the police report, the court should consider whether the report constitutes testimonial evidence under a Crawford analysis. See generally State v. Morales, 2002-NMCA-016, ¶ 18, 131 N.M. 530, 39 P.3d 747 (providing that it is for the district court inthefirstinstancetomaketherequiredfindings).

Officer Saavedra’s Statements{13} We next consider whether the state-ments thatOfficerSaavedramade to theoccupants of the home, while improperly excluded under a Miranda analysis, none-theless would have been properly excluded to protect Defendant’s confrontation rights. As noted earlier, while speaking to the caller, Officer Saavedra contemporane-ously related to others in the house that thecallerwas“Roberto,”and theofficeralso indicated that he was speaking to the “shooter of the residence.” The State presumablyplanstointroducetheofficer’sstatements through the testimony of the oc-cupantswhoheardtheofficermakesuchstatements.BecauseOfficer Saavedra isunavailable and there has been no prior op-portunity for Defendant to cross-examine OfficerSaavedra about such statements,Crawfordprovidesthattheofficer’sstate-ments, if testimonial, must be excluded. 541 U.S. at 53-54.{14} In addressing whether Officer Saavedra’s statements are testimonial, the parties’ briefs present differing viewpoints. Defendant maintains that the statements are testimonial because the officermadethem to the occupants of the house, which includedanotherofficer,inanticipationofusing them in a future criminal proceed-ing. See generally State v. Romero, 2006-NMCA-045, ¶ 46, 139 N.M. 386, 133 P.3d 842 (recognizing that statements given under circumstances when the declarant objectively might anticipate their use in a later criminal prosecution are testimonial in nature), aff ’d, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694; see also State v. Dedman, 2004-NMSC-037, ¶ 29, 136 N.M. 561, 102 P.3d 628 (recognizing that a core concern underlying confrontation-clause protection is the “involvement of governmentofficers in theproductionoftestimony with an eye toward trial, because this provides a unique potential for prosecu-torial abuse” (alteration omitted) (internal quotation marks and citation omitted)). Conversely, the State maintains that Of-ficerSaavedramadehisstatementstotheoccupants not with the goal of perpetuating trial testimony, but instead to secure the scene and while he was under the immedi-ate stress of an ongoing emergency. See generally Ortega, 2008-NMCA-001, ¶¶ 28-29 (referring to Davis v. Washington, 547 U.S. 813, 821-22 (2006), and holding that statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interroga-

tion is to enable police assistance to meet an ongoing emergency). {15} Both parties’ respective positions merit further consideration, but we are unable to do so in the absence of an ap-propriate record to address a Crawford analysis. See Romero, 2006-NMCA-045, ¶ 66 (providing that whether a statement is an excited utterance or present-sense impression, and thus non-testimonial for purposes of a Crawford analysis, requires afact-specificinquiry).Thedistrictcourtdid briefly referenceCrawford and con-clude thatOfficerSaavedra’s statementswere testimonial, however, it did so in the contextofitsrulingthattheofficer’sstate-ments were the tainted result of Miranda violations. Because the court’s ruling was premised on Miranda, the appropriate factsandargumentsspecifictoaCrawford analysis are absent from the record. We are unwilling to speculate as to the specificarguments and relevant facts that the par-ties would have developed below had they not been cut off from doing so based on the court’s Miranda ruling. Cf. State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181 P.3d 684 (holding that under the right-for-any-reasondoctrine, “wemayaffirm thedistrict court’s order on grounds not relied upon by the district court if those grounds do not require us to look beyond the factual allegations that were raised and considered below” (internal quotation marks and cita-tion omitted)). We accordingly remand with instructions that the district court consider the admissibility of Officer Saavedra’s statements in the context of a Crawford analysis.CONCLUSION{16} We reverse the district court’s ruling that the statements at issue were obtained in violation of Miranda.Specificto the statements that the State alleges were made by Defendant, we remand for consid-eration of whether such statements can be authenticated and admitted through Luna’s testimony. As for Defendant’s statements that are set forth in the police report, we remand for consideration of the report’s admissibility in the context of a Crawford analysis.SpecifictothestatementstheStateallegesweremade byOfficer Saavedra,we also remand for consideration of these statements in the context of a Crawford analysis. {17} IT IS SO ORDERED. JONATHAN B. SUTIN, JudgeWE CONCUR:MICHAEL D. BUSTAMANTE, JudgeTIMOTHY L. GARCIA, Judge





Topic Index:Civil Procedure: Summary Judgment

Employment Law: Collective Bargaining; and Labor UnionsGovernment: Public Employees

Remedies: ArbitrationStatutes: Interpretation

INTERNATIONAL ASSOCIATIONOF FIREFIGHTERS, Local 1687

AFL-CIO,Plaintiff-Appellee,

versusCITy OF CARLSBAD, a New Mexico

Municipal Corporation,Defendant-Appellant.

No. 28,189 (filed: June 23, 2009)

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTYJANE SHULER GRAy, District Judge

W.T. MARTIN, JR.KENNETH D. DUGAN

LANE T. MARTINTHE MARTIN LAW FIRMCarlsbad, New Mexico

for Appellee

vIRGINIA A. ANDERMANCHARLOTTE LAMONT

MILLER STRATvERT P.A.Albuquerque, New Mexico

for Appellant

opinion

JaMes J. Wechsler, Judge

{1} The Public Employee Bargaining Act (PEBA), NMSA 1978, §§ 10-7E-1 to -26 (2003, as amended through 2005), provides for final, binding arbitration asan impasse procedure in the event a public employer and an exclusive representative of its employees reach an impasse that can-not be mediated in negotiations under the PEBA. Section 10-7E-18(B). The PEBA further provides that an impasse resolu-tion between such parties that requires an expenditure of funds “shall be contingent upon the specific appropriationof fundsby the [L]egislature and the availability of funds.” Section 10-7E-17(E). We ad-dress in this appeal the tension between these provisions. We hold, as a matter of statutory interpretation, that Section 10-7E-17(E) (the contingency provision) prevails. The district court reached the

opposite conclusion. We therefore reverse its grant of summary judgment to Plaintiff InternationalAssociation ofFirefighters,Local 1687, AFL-CIO (Union) and its denial of summary judgment to Defendant City of Carlsbad (City) and, in turn, award judgment to the City.BACKGROUND{2} The Union is the collective bargaining agentfortheCity’sfirefighters.Itistheirexclusive representative under Section 10-7E-15. The City and the Union have long engaged in collective bargaining and have had numerous collective bargaining agree-ments in place that set terms as to wages and working conditions. The last collective bargaining agreement expired on April 14, 2006.{3} In negotiating for a new collective bargaining agreement, the Union and the City reached agreement on all is-sues except wages, on which issue they reached an impasse. They entered into a memorandum of understanding (MOU),

stating that “[t]he impasse procedures as definedunder[Section10-7E-18(B)]willgovern the process for resolution of this impasse.” They selected an arbitrator, who, after conducting an arbitration proceeding, entered an arbitration award, on May 25, 2007, based on the Union’s last, best offer. The award addresses a three-year period, grantinga3.25%wageincreaseinthefirstfiscalyear,FY2006-2007;a15%one-timeincrease in addition to a 3% increase in FY 2007-2008; and a 3% increase in FY 2008-2009.Thearbitratorspecifiedthattheaward “makes no determination as to the economic capability of the City of Carlsbad as that decision must be left to the authority and determination of the City Council.” The City did not appropriate funds in its FY 2007-2008 budget to put into effect the award’s one-time 15% increase.{4} TheUnionfiledacomplaintseekingenforcement of the arbitration award and an injunction, followed by a motion for partial summary judgment. The City responded with a counter-motion for summary judg-ment. The district court held a hearing on the motions and ruled from the bench in the Union’s favor. It later entered numerous orders in conjunction with its ruling. The pertinent orders for the purposes of this appeal are (1) the order granting summary judgment and confirming the arbitrationaward, (2) the amended order issuing a writ of mandamus compelling the City to comply with the arbitration award, and (3) the order granting the Union’s request for attorney fees and costs in the amount of $46,927. The City appeals from these orders.ENACTMENT AND RE-ENACTMENT OF IMPASSE PROCEDURES{5} The Legislature originally enacted the PEBA in 1992 with a sunset provision to take effect in 1999. NMSA 1978, §§ 10-7D-1 to -26 (1992, as amended through 1998) (repealed 1999). It re-enacted the PEBA in 2003 in mostly the same form as the original version. See §§ 10-7E-1 to -26. See generally S. Barry Paisner & Michelle R. Haubert-Barela, Correcting the Imbalance: The New Mexico Public Employee Bargaining Act and the Statu-tory Rights Provided to Public Employees, 37 N.M. L. Rev. 357 (2007) (discussing the history surrounding the enactment of New Mexico’s PEBA). The purpose in both versions was the same, “to guarantee public employees the right to organize and bargain collectively with their employers, to promote harmonious and cooperative relationships between public employers


and public employees and to protect the public interest by ensuring, at all times, the orderly operation and functioning of the state and its political subdivisions.” Section 10-7E-2; § 10-7D-2. In its re-enactment, the Legislaturemadeasignificantchangetotheimpasse resolution procedures. It instituted arbitrationasafinalprocedureinresolvingan impasse in negotiations between a public employer and an exclusive representative of public employees. See § 10-7E-18(B); § 10-7D-18(B). It also expanded the scope of language limiting the ability of negotiating parties in circumstances that require the expenditure of funds. See §§ 10-7E-17(E), 10-7E-18(B); § 10-7D-17(E).{6} We begin our analysis with these provisionsand their reflectionof legisla-tive intent. We then address the Union’s several arguments that bear on the legisla-tiveintent.WefinallyconsidertheUnion’sposition that genuine issues of material fact remain so as to defeat summary judgment in favor of the City. LEGISLATIVE INTENT OF IMPASSE PROCEDURES {7} The impasse resolution procedures that the Legislature adopted in the PEBA in 2003 included two alternatives for resolv-ing an impasse in negotiations. The par-ties could (1) engage in mediation, which would lead to arbitration, or (2) enter into a written agreement to use an alternative procedure. Section 10-7E-18 containing these procedures provides, as pertinent to this appeal:

(B) The following impasse procedures shall be followed by all public employers and exclusive representatives, except the state and the state’s exclusive represen-tatives:

(1) if an impasse occurs, either party may request from the board or local board that a media-tor be assigned to the negotiations unless the parties can agree on a mediator. A mediator with the federal mediation and concilia-tion service shall be assigned by the board or local board to assist negotiations unless the parties agree to another mediator; and

(2) if the impasse contin-ues after a thirty-day mediation period, either party may request a list of seven arbitrators from the federal mediation and con-ciliation service. One arbitrator shall be chosen by the parties by alternately striking names from

suchlist.Whostrikesfirstshallbedetermined by coin toss. The arbi-tratorshallrenderafinal,binding,written decision resolving unre-solved issues pursuant to [Section 10-7E-17(E)] of the [PEBA] and the Uniform Arbitration Act[, NMSA 1978, §§ 44-7A-1 to -32 (2001),] no later than thirty days after the arbitrator has been noti-fiedofhisorherselectionbytheparties. The arbitrator’s decision shall be limited to a selection of one of the two parties’ complete, last, best offer. The costs of an ar-bitrator and the arbitrator’s related costs conducted pursuant to this subsection shall be shared equally by the parties. Each party shall be responsible for bearing the cost of presenting its case. The decision shall be subject to judicial review pursuant to the standard set forth in the Uniform Arbitration Act.

(C) A public employer other than the state may enter into a written agreement with the exclu-sive representative setting forth an alternative impasse resolution procedure.

{8} Of the alternative procedures of Sec-tion 10-7E-18, the parties elected a hybrid; they entered into an agreement, the MOU, thatwouldfittherequirementsofSubsec-tion C and agreed to proceed directly to arbitration under Subsection B. Acting under Subsection B, the parties selected an arbitrator, who, as the statute demands, entered a written decision within thirty days based on the Union’s last, best offer. Section 10-7E-18(B)(2). Subsection B calls forthearbitrator’sdecisiontobea“final,binding” one. Section 10-7E-18(B)(2). {9} Section 10-7E-18(B) also provides for the arbitrator’s decision to be “pursuant to” Section 10-7E-17(E). Section 10-7E-17(E) states, in pertinent part:

An impasse resolution or an agreement provision by a public employer other than the state or the public schools and an exclu-sive representative that requires the expenditure of funds shall be contingent upon the specificappropriation of funds by the ap-propriate governing body and the availability of funds. . . . An arbi-tration decision shall not require the reappropriation of funds.

The tension in the language of Section 10-7E-18(B)(2) and Section 10-7E-17(E)

providingforafinal,bindingarbitrationde-cision that is contingent upon the appropria-tion and availability of funds presents the issue in this case and requires interpretation of the PEBA. The district court interpreted the PEBA to conclude that the arbitrator’s awardwasfinalandbindingontheparties.On appeal, we review de novo a district court’s interpretation of a statute. City of Deming v. Deming Firefighters Local 4521, 2007-NMCA-069, ¶ 6, 141 N.M. 686, 160 P.3d595.Indoingso,weendeavortofulfillthe intent of the Legislature in enacting the statute. Regents of Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236. {10} The Union urges us to accept the district court’s interpretation by highlight-ing the Legislature’s language in Section 10-7E-18(B)(2) that the arbitrator “shall renderafinal,binding”decision.Itsupportsits position with policy arguments stress-ing the legislative purpose of guaranteeing public employees the right to organize and collectively bargain with public employ-ers. Section 10-7E-2. According to the Union, the Legislature intended mandatory arbitration to be an essential tool of public employees in the collective bargaining pro-cess because the PEBA forbids striking by public employees, a right available to pri-vate sector employees. Therefore, the Union continues, unless mandatory arbitration is finalandbinding,thecollectivebargainingright of public employees guaranteed by the PEBA will not be meaningful.{11} When engaging in statutory construc-tion,welookfirsttotheplainlanguageofthe statute and construe it “in its entirety, considering all provisions in relation to each other.” City of Deming, 2007-NMCA-069, ¶ 21. We seek to give meaning to all parts of the statute, such that no portion is rendered surplusage or meaningless. Regents of Univ. of N.M., 1998-NMSC-020, ¶ 28. With this foundation for our analysis, the Union argues that an interpretation of the PEBA contrary to that made by the district court wouldrenderthe“final,binding”languageof Section 10-7E-18(B)(2) meaningless. We reach the opposite conclusion.{12} Section 10-7E-18(B)(2) states thatanarbitratorshallenterafinal,bind-ing decision and also that such decision must be pursuant to Section 10-7E-17(E). Section 10-17E-17(E) makes an impasse resolution that requires the expenditure of funds contingent upon the appropriation and availability of funds. By framing the arbitrator’s authority in this manner in Sec-tion10-7E-18(B),theLegislaturequalified


the arbitrator’s authority with the language of Section 10-7E-17(E). See Kahrs v. San-chez, 1998-NMCA-037, ¶ 24, 125 N.M. 1, 956P.2d132 (filed 1997) (presumingthat the Legislature is aware of existing law when enacting statutes). Indeed, if we were to determine, as we believe the district court did, that the arbitrator could actunderSection10-7E-18(B)(2)inafinaland binding way without reference to the requirements of Section 10-7E-17(E), we would be ignoring the legislative language of Section 10-7E-18(B)(2) and considering its reference to Section 10-7E-17(E) to be meaningless. See Regents of Univ. of N.M., 1998-NMSC-020, ¶ 28 (mandating that no part of a statute is surplusage). Instead, we can give meaning to the two sections in relation to each other by reading the qualification of Section 10-7E-17(E) todefinethearbitrator’sauthoritytorenderafinal,bindingdecision:itiscontingentuponthe appropriation and availability of funds when the decision requires the expenditure of funds. {13} As to the Union’s policy arguments, while we agree with the Union regarding theimportanceoffinalityinthecollectivebargaining process, the legislative purpose of the PEBA also includes ensuring “the orderly operation and functioning” of political subdivisions. Section 10-7E-2. Section 10-7E-17(E) comports with this purpose because it subjects an arbitration award to the appropriation and availability of funds of a political subdivision. From the language of the PEBA, we cannot agree with the Union that the Legislature, when considering a balance of the public interests, raised the need for binding arbi-tration above the stability of public funds. Indeed, the 1992 version of the PEBA did not provide for mandatory arbitration as an impasse procedure and, for public employ-ers other than the state and their employees’ exclusive representatives, provided only factfinding and recommendations by a factfinder. Section 10-7D-18(B). It alsoprohibited strikes. Section 10-7D-21(A). When adopting arbitration in 2003, the Legislature did not mandate arbitration but, instead, provided it as an option. And while the Legislature required that any ar-bitrationbefinalandbinding,itsubjectedit to the contingency of the appropriation and availability of funds that had been part of the 1992 version of the PEBA. Sections 10-7E-17(E), 10-7E-18(B); § 10-7D-17(E). It continued to leave to governmental enti-ties the ability to manage and appropriate their public funds. See § 10-7E-17(E). The

2003 version of the PEBA simply did not go as far as the Union argues.THE UNION’S OTHER LEGISLA-TIVE INTENT ARGUMENTSLimited Role of Section 10-7E-17(E){14} The Union makes several argu-ments differing from our interpretation. It argues in part that the Legislature did not intend Section 10-7E-17(E) to apply in this case. According to the Union, Section 10-7E-17(E) only provides that the con-tingency of appropriation and availability of funds apply to “[a]n impasse resolution or an agreement provision by a public em-ployer . . . and an exclusive representative that requires the expenditure of funds.” (Emphasis added.) It contends that if the procedure in this case is an impasse resolu-tion, it was “by” the arbitrator, not the City and the Union. It concludes that the only part of Section 10-7E-17(E) that applies to Section 10-7E-18(B) is the last sentence that forbids an arbitration decision from requiring the reappropriation of funds.{15} We cannot agree with the Union’s reading of the statutory provisions. First, arbitration is an impasse resolution pro-cedure that results in an impasse resolu-tion. Section 10-7E-18(B) provides the “impasse procedures” to be followed by public employers other than the state and their employees’ exclusive representa-tives. It provides arbitration as the ultimate procedure. Section 10-7E-18(B)(2). The arbitration procedure requires a decision by an arbitrator “resolving unresolved issues.” Id. Section 10-7E-18(B)(2) intends that the decision and the procedure used to reach it constitute an impasse resolution. Second, the 2003 version of thePEBAmodifiedboth Section 10-7D-18(B) and Section 10-7D-17(E). The Legislature made refer-ence to Section 10-7E-17(E) in Section 10-7E-18(B) in 2003 when it enacted the new impasse resolution procedures. In addition, the 1992 version provided in pertinent part: “Any agreement provision by a public employer other than the state or the public schools and an exclusive rep-resentative that requires the expenditure of fundsshallbecontingentuponthespecificappropriation for wages by the appropri-ate governing body and the availability of funds.” Section 10-7D-17(E). By changing the language to pertain to “[a]n impasse resolution or an agreement provision by a public employer other than the state or the public schools and an exclusive rep-resentative” and by referencing Section 10-7E-17(E) in Section 10-7E-18(B), the Legislature linked Section 10-7E-17(E)

with Section 10-7E-18(B) so that the impasse resolution alternatives discussed in Section 10-7E-18(B) applied to both sections. See Quantum Corp. v. State Taxa-tion & Revenue Dep’t, 1998-NMCA-050, ¶ 8, 125 N.M. 49, 956 P.2d 848 (stating that statutes should be construed together with other statutes on the same subject matter). Third, as drafted, Section 10-7E-18(B)(2) refers to the entirety of Section 10-7E-17(E), not only the last sentence. If the Legislature intended to only refer to the last sentence, it could have done so, or even incorporated it into Section 10-7E-18(B)(2). See Kahrs, 1998-NMCA-037, ¶ 24 (presuming that the Legislature is aware of existing law when enacting statutes).{16} The Union also contends that our interpretation of the PEBA would render the last sentence of Section 10-7E-17(E) meaningless. The Union states that the sentence was added when the Legislature added the arbitration provision to Section 10-7E-18(B). It reasons that “reappropria-tion” is a form of “appropriation,” and Sec-tion 10-7E-17(E) already provided that an arbitrator could not “appropriate funds.” However, reappropriation is different from appropriation because it involves a modification of existing appropriations.Moreover, the Union contends that there is no reappropriation issue in this case. Additionally, we cannot agree with the Union that Section 10-7E-18(B)(2) con-trols over Section 10-7E-17(E) because it isthemorespecificstatute.Thelegislativelanguagespecificallystatesitsintentthatwe construe Section 10-7E-17(E) as part of Section 10-7E-18(B)(2). This argu-ment would require that we ignore the Legislature’sspecificreferencetoSection10-7E-17(E) in Section 10-7E-18(B)(2). Fairness and Due Process {17} The Union further argues that our interpretation is unfair and violative of due process. It contends that it is unfair because it is one-sided to allow the City the opportunity to avoid an arbitration de-cision without giving the Union the same opportunity. It notes the public policy favoring arbitration and cites Padilla v. State Farm Mutual Automobile Insurance Co., 2003-NMSC-011, 133 N.M. 661, 68 P.3d 901, in which our Supreme Court considered a provision in an insurance contract that provided for mandatory arbitration to be binding only if it did not exceed the limits of the Mandatory Financial Responsibility Act (MFRA), NMSA 1978, §§ 66-5-201 to -239 (1978, as amended through 2003), and otherwise


allowedeitherpartytofileadenovo ap-peal. Padilla, 2003-NMSC-011, ¶ 2. The Court held the contractual provision to be void as substantively unconscionable because it was incompatible with the pub-lic policies of encouraging arbitration and protecting persons from uninsured drivers as expressed in the MFRA. Id. ¶¶ 2, 13-14. However, in this case, we are not address-ing the application of statutory policies to a contractual provision between private parties, as in Padilla. Rather, our issues in-volve the interpretation of the Legislature’s policies that it set forth in the PEBA. As we have discussed, the Legislature engaged in a balancing of policies in enacting the PEBA. The contingency language of Sec-tion 10-7E-17(E) that protects the public fiscallywhen funds are not available tomeet an arbitrator’s decision fulfills oneof the stated purposes in the statute. See § 10-7E-2.{18} With regard to due process, the Union also relies on Board of Education of Carlsbad Municipal Schools v. Harrell, 118 N.M. 470, 882 P.2d 511 (1994), to contend that due process restraints apply to arbitration under the PEBA. In Harrell, our Supreme Court applied due process requirements to the compulsory arbitration process of NMSA 1978, Section 22-10-17.1 (1993). Harrell, 118 N.M. at 477, 882 P.2d at 518. It stressed the difference between voluntary and compulsory arbitration.

While voluntary arbitration may be conducted using any procedure acceptable to the par-ticipants, compulsory arbitration must comport with due process. [V]oluntary arbitration and com-pulsory arbitration are fundamen-tally different if only because one may, under our system, consent to almost any restriction upon or deprivation of right, but similar restrictions or deprivations, if compelled by government, must accord with procedural and sub-stantive due process.

Id. (alteration in original) (internal quota-tion marks and citation omitted). It con-cluded that the arbitration was compulsory, even though the employee contractually consented to submit his grievance to ar-bitration, because the statute imposed a mandatory arbitration requirement and that the statute violated due process in-sofar as it restricted judicial review of the arbitrator’s decision. Id. at 476, 486, 882 P.2d at 517, 527. The PEBA is very different. Section 10-7E-18(C) enables a

public employer other than the state and an exclusive representative to agree in writ-ing to any impasse resolution procedure, notwithstanding the procedures set forth in Section 10-7E-18(B)(2) that call for ar-bitration. Arbitration becomes mandatory only if the parties elect to proceed under Section 10-7E-18(B), as the Union and the City did by their MOU. Harrell does not apply to this case. Moreover, the contin-gency provisions of Section 10-7E-17(E) that recognize that a public entity may not have the funds available to comply with an arbitrator’s decision are reasonably designedtofulfillthestatutorypurposeofprotecting the public interest “by ensuring, at all times, the orderly operation and func-tioning” of the City. Section 10-7E-2; see Rex, Inc. v. Manufactured Hous. Comm., 2003-NMCA-134, ¶ 15, 134 N.M. 533, 80 P.3d 470 (explaining that an argument for due process requires a balancing of the private interest and the risk of errone-ous deprivation against the government’s interest).Interpretation of the MOU{19} The Union makes the additional argument that the parties agreed to bind-ing arbitration because they did not refer to Section 10-7E-17(E) in the MOU. The MOU states: “The impasse procedures as definedunder[Section10-7E-18(B)]willgovern the process for resolution of this impasse.” According to the Union, because the MOU refers only to the impasse pro-cedures of Section 10-7E-18(B) and does not reference Section 10-7E-17(E), Section 10-7E-17(E) should not be considered to resolve this impasse. We do not agree. The parties expressly agreed to use the “im-passeproceduresasdefinedunder”Section10-7E-18(B).Those procedures specifi-cally reference Section 10-7E-17(E). Even though the parties did not mention Section 10-7E-17(E), the impasse procedures of Section 10-7E-18(B), as designated by the parties, incorporate Section 10-7E-17(E).Appropriation of Funds{20} The Union alternatively argues that even if Section 10-7E-17(E) applies, the arbitrator’s salary award did not require the appropriation of funds so as to trigger Section 10-7E-17(E). The Union sug-gests, citing Municipality of Anchorage v. Anchorage Police Department Employees Ass’n, 839 P.2d 1080 (Alaska 1992), that the City could have accommodated the arbitration award by shifting funds or by cutting other expenditures. However, Municipality of Anchorage is not on point. It involved an ordinance that mandated

binding arbitration, and the pertinent is-sue was whether the potential for judicial enforcement of an arbitrator’s award under the ordinance unconstitutionally delegated the power to appropriate funds. Id. at 1089. The court observed in that context that the executive and legislative branches of gov-ernment must provide the required funding for collective bargaining arbitration awards because they are part of the contractual ne-gotiations. Id. at 1090-91. The case before us does not raise that issue. Moreover, as distinguished from the ordinance in Mu-nicipality of Anchorage, the PEBA provides that arbitration decisions requiring the expenditure of funds are contingent upon the appropriation and availability of funds. Section 10-7E-17(E).{21} Nor do we agree with the Union thatthedistrictcourt’sjudgment,confirma-tion of the arbitrator’s award, and writ of mandamus require the City’s compliance without regard to any appropriation. The argument simply ignores the question of the appropriation and availability of funds as set forth in Section 10-7E-17(E).ABSENCE OF GENUINE ISSUE OF MATERIAL FACT{22} The district court granted the Union’s motion for summary judgment and denied the City’s counter-motion for summary judgment. When the district court acts on counter-motions for summary judgment based on a common legal issue, this Court may reverse both the grant of one motion and the denial of the other and award judgment on the previously denied motion. Cuevas v. State Farm Mut. Auto. Ins. Co., 2001-NMCA-038, ¶ 6, 130 N.M. 539, 28 P.3d 527. {23} The Union asserts that it would not be appropriate for us to award judgment to the City because genuine issues of material fact remain that must be resolved at trial. See Rule 1-056(C) NMRA (stating that summary judgment is appropriate if the summary judgment record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law”). The Union first contends that issues of fact remainconcerning its claims that (1) the City breached its obligation under the PEBA “to negotiate in good faith by arbitrarily and without adequate grounds failing to honor the arbitration award” and (2) the City defrauded the Union by “pretending that the arbitration award would bind it and luring [the Union] into executing the arbi-tration agreement.” However, the Union did not raise these claims in its complaint.


It mentions such claims in one of its briefs in conjunction with the counter-motions for summary judgment, referring to Paragraphs 27-29 of its complaint. However, those paragraphs merely recite allegations that the City budgeted for portions, but not all, of the arbitrator’s award. The complaint does not contain any claim that the City breached its obligation under the PEBA to negotiate in good faith or that it defrauded the Union.{24} The Union also contends that there are issues of fact that must be resolved due

to the ambiguity of the MOU. But we do not agree that the MOU is ambiguous. As we have discussed, it clearly requires the parties to follow the impasse procedures of Section 10-7E-18(B). That section unambiguously incorporates Section 10-7E-17(E). There is no remaining factual issue. CONCLUSION{25} Under the PEBA, an arbitration award requiring a public employer other than the state to expend funds is contingent upon the appropriation and availability of

funds. We reverse the district court’s grant of summary judgment to the Union and denial of summary judgment to the City. We award judgment to the City. Because we reverse on the merits, we also reverse the district court’s award of attorney fees and costs to the Union.{26} IT IS SO ORDERED. JAMES J. WECHSLER, Judge

CYNTHIA A. FRY, Chief JudgeROBERT E. ROBLES, Judge





Topic Index:Appeal and Error: Standard of Review

Criminal Law: Driving While Intoxicated; and vehicular HomicideCriminal Procedure: Enhancement of Sentence; Good Time;

Judgment and Sentence; and Substantial or Sufficient EvidenceEvidence: Substantial or Sufficient Evidence

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusTIMOTHy SOLANO,

Defendant-Appellant.No. 28,166 (filed: June 25, 2009)

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTYMICHAEL E. vIGIL, District Judge

GARy K. KINGAttorney General

Santa Fe, New MexicoSTEvEN S SUTTLE

Special CounselAlbuquerque, New Mexico

for Appellee

HUGH W. DANGLERChief Public Defender

MARy A. BARKETAssistant Appellate Defender

Santa Fe, New Mexicofor Appellant

opinion

celia foy castillo, Judge

{1} Defendant challenges the district court’s designation of his conviction for third degree vehicular homicide as a seri-ous violent offense for the purposes of the Earned Meritorious Deductions Act (the EMDA), NMSA 1978, § 33-2-34 (2004) (amended 2006). We conclude that the district court’s designation was not an abuse of discretion because (1) the factual findingswerelegallysufficienttosatisfythis Court’s requirements in State v. Mo-rales, 2002-NMCA-016, 131 N.M. 530, 39P.3d747(filed2001)and(2)substantialevidencesupportedthosefindings.Accord-ingly,weaffirmthedistrictcourt.I. BACKGROUND{2} On July 27, 2005, Defendant struck and killed the victim with his vehicle. De-fendant’s blood alcohol level tested at .23 and .24. On August 12, 2005, Defendant was charged in district court with one count of homicide by vehicle, contrary to NMSA 1978, Section 66-8-101 (2004). Defendant

waived indictment, pled guilty, and judg-ment was entered on August 15, 2005. The district court committed Defendant to the corrections department for sixty days for the purposes of diagnosis and evaluation.{3} The sentencing hearing was held on November 23, 2005, during which the district court heard from the victim’s fam-ily. The State recommended the maximum sentence. The district court imposed the maximum sentence and designated the conviction to be a serious violent offense, thus limiting the amount of good time credit that Defendant could earn. The district court commended Defendant for taking responsibility for his actions and suspended two years of the sentence based on this and Defendant’s remorse.{4} Defendant appealed the serious violent offender designation to this Court. By memorandum opinion, this Court remanded the matter back to the district courtbecausethefindingssupportingtheserious violent offense designation were insufficienttosatisfytheestablishedlegalstandard. State v. Solano, No. 26,403, slip op. at 3-4 (N.M. Ct. App. July 24, 2007).

On remand, the district court held a sec-ond sentencing hearing. The court made additionalfindingsandimposedthesamesentence, including the serious violent of-fense designation. Defendant again appeals his sentence.II. DISCUSSION{5} Defendant makes two arguments in the current appeal. First, Defendant contendsthatthedistrictcourt’sfindingsonremandwereagaininsufficienttosup-port a serious violent offense designation. Second, Defendant argues that the district court’s serious violent offense designation was not supported by substantial evidence. In addition, Defendant and the State dis-pute the standard for our review. We begin with the standard of review and a brief overview of the EMDA, and then we turn to Defendant’s arguments.A. Standard of Review{6} Defendant argues that we apply both a de novo and a substantial evidence stan-dard. He states that we consider de novo whether the district court’s findings arein compliance with the EMDA and then consider whether the designation was sup-ported by substantial evidence. The State contends that we conduct our review for abuse of discretion. Although we agree with the State that the proper standard is abuse of discretion, we observe that Defen-dant’s approach effects the same result.{7} Our Supreme Court has explained that the judiciary has no role in the administra-tion of the EMDA apart from exercising “discretion to determine whether the nature of the offense and the resulting harm in a particular factual context justify catego-rizing the offense as a serious violent of-fense.” State v. Rudolfo, 2008-NMSC-036, ¶ 37, 144 N.M. 305, 187 P.3d 170. Nev-ertheless, “[a]lthough the determination that a crime that falls within the district court’s discretionary authority under the EMDA as a serious violent offense is a discretionary act, the district court will abuse its discretion if it acts contrary to law.” State v. Scurry, 2007-NMCA-064, ¶ 4, 141 N.M. 591, 158 P.3d 1034. In addi-tion, a district court abuses “its discretion when its decision is not supported by sub-stantial evidence.” State v. Montoya, 2005-NMCA-078, ¶ 8, 137 N.M. 713, 114 P.3d 393. Thus, we review the district court’s findingsandsubsequentseriousviolentof-fenderdesignation“forsufficientevidence,for legal error, as well as for an untenable choice between or among alternatives.” State v. Gonzales, 2005-NMSC-025, ¶ 25, 138 N.M. 271, 119 P.3d 151 (describing


the scope of appellate review under the abuse of discretion standard).{8} We now turn to the relevant language of the EMDA and its accompanying case law.B. The EMDA{9} Under Section 33-2-34, a prisoner may earn meritorious deductions under certain circumstances. If the offense is a nonviolent offense, the defendant may earn up to thirty days per month of time served. Section 33-2-34(A)(2). If the of-fense of conviction is designated as a seri-ous violent offense, however, the sentence reduction is limited to no more than four days per month of time served. Section 33-2-34(A)(1). A “nonviolent offense” is definedas“anyoffenseotherthanaseri-ous violent offense.” Section 33-2-34(L)(3).A“seriousviolentoffense”isdefinedin two ways. Section 33-2-34(L)(4)(a) through (n) enumerates specific crimesthat are per se serious violent offenses—crimes that are designated serious violent offenses regardless of the circumstances. Section 33-2-34(L)(4)(o) lists several oth-erspecificcrimesthatmaybeconsideredserious violent offenses “when the nature of the offense and the resulting harm are such that the court judges the crime to be a serious violent offense for the purpose of this section.” Included among these discretionary serious violent offenses is Defendant’s crime—third degree homi-cide by vehicle, as prohibited by Section 66-8-101. See § 33-2-34(L)(4)(o)(14).{10} This Court has previously ad-dressed the differences between the per se serious violent offenses under Section 33-2-34(L)(4)(a) through (n) and the discretionary designations under Section 33-2-34(L)(4)(o). In order to designate the conduct of a particular defendant as a serious violent offense under the discre-tionary category, the district court must determine that the crime was “commit-ted in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowledge that one’s acts are reasonably likely to result in serious harm.” Morales, 2002-NMCA-016, ¶ 16. This factual basis for designation of a serious violent offense mustbereflectedinfindingsmadebythedistrict court. Id. ¶¶ 17-18. This Court has since clarified the requirement for suchfindingsandhasexplainedthatadistrictcourt“neednotexpressitsfindingsintheMoraleslanguageaslongasthefindingsare consistent with the Morales standard.” Montoya, 2005-NMCA-078, ¶ 8. Turning

to the facts of the present case, we con-siderthesufficiencyofthedistrictcourt’sfindings.C. The District Court’s Findings{11} Thedistrictcourtmadetwofind-ings relevant to the Morales criteria:

This sentencefinds that theof-fense was committed in a physi-cally violent manner with reck-lessness in the face of knowledge that his acts were reasonably likely to result in serious harm.

Th[is c]ourt [has] consider[ed] [Defendant’s] prior history of alcohol abuse along with prior criminal history involving alco-hol related offenses not used to enhance his sentence. The [c]ourt makes thespecificfinding [thatDefendant’s] actions amount to an offense committed in a physical violent manner in that he crossed the center and struck the victim, who was on a bicycle and propelled her through the air and into the bed of his truck.

Defendant first argues that the districtcourt’sfactualfindingsinthepost-remandorder do not indicate “why this particular instance of vehicular homicide was, based on the uncontested facts, more egregious than any other vehicular homicide case.” As we have stated, the serious violent of-fense inquiry rests on two factors: (1) the physically violent manner in which the crime was committed and (2) the level of intent demonstrated by the defendant’s actions. See Morales, 2002-NMCA-016, ¶ 16. Defendant cites no authority to suggest that the district court is further requiredtofindthattheparticularoffensewas “more egregious” than other similarly categorized offenses, and we therefore assume that no such authority exists. See State v. Vaughn, 2005-NMCA-076, ¶ 42, 137 N.M. 674, 114 P.3d 354.{12} Defendant next argues that the facts recited by the district court do not establish the Morales criteria. Spe-cifically, Defendant contends that the district court’s reliance on his history of alcoholism and previous alcohol-related convictions do not support an inference of the requisite intent and that the district court’s recitation of the facts surrounding the manner of the victim’s death do not establish that this vehicular homicide was committed in a physically violent manner. We disagree.1. History of Alcohol Abuse{13} Defendant provides several bases

for the argument that his history does not demonstratetherequisiteintent.Hefirstargues that to rely on past convictions to support a serious violent offense designa-tion is inappropriate because he was al-ready punished for those offenses. He then asserts that the Legislature was undoubt-edly aware that it is not uncommon for perpetrators of vehicular homicide to have prior convictions and had it intended for the district court to consider past offenses, it would have included vehicular homicide as a per se serious violent offense. Next, Defendant points to Section 66-8-101(D) and argues that because the Legislature does not permit a sentence enhancement to be based on a vehicular homicide con-viction that is more than ten years old, the Legislature also did not intend for convictions that are greater than ten years old “to form the basis for the imposition of further punishment.” Finally, Defendant relies on a United States Department of Transportation report—referred to for the firsttimeonappeal—tocontendthat“itisquite unlikely that a given drunk driving episode will result in great bodily harm.” Duringthisappeal,theStatefiledamo-tion to strike references to the study from Defendant’s brief in chief because the report was not offered as evidence during the district court proceedings or made a part of the record. Although we denied the State’s motion to strike the references to the report, we did so with the proviso that we would not consider the report on appeal. Because Defendant’s argument is otherwise unsupported, we do not address it.{14} We initially observe that Defen-dant’sfirstthreeargumentsfailtoexplainwhy a defendant’s extensive history of abusing alcohol would not permit an inference of knowledge or recklessness. Thefirstandthirdargumentsrelatingtopast convictions and additional punish-ment have been addressed by this Court and our Supreme Court in the past. “[T]he EMDA does not change the maximum penalty for a defendant’s crime or impose an additional penalty. Rather, the statute affects the amount of time by which [a] defendant through his own good conduct could decrease his sentence.” State v. Andazola, 2003-NMCA-146, ¶ 21, 134 N.M. 710, 82 P.3d 77 (internal quotation marks and citation omitted); see also State v. Schoonmaker, 2008-NMSC-010, ¶ 53, 143 N.M. 373, 176 P.3d 1105 (“Limiting a defendant’s ability to earn meritorious deductions does not result in punishment


beyond that which has been statutorily established for the offense.”). Thus, con-sidering a defendant’s history—criminal or otherwise—does not lead to impermissible further punishment.{15} Defendant’s second argument ap-pears to be that because so many vehicular homicides are caused by repeat offenders andvehicularhomicidesarenotclassifiedas per se offenses, the Legislature intended for the courts to ignore evidence of past transgressions. Defendant maintains that any other interpretation of the Legislature’s intent transforms all vehicular homicides into serious violent offenses. This Court explained in Morales, however, that discre-tionary serious violent offenses “are char-acterized by multiple ways of committing the offense, some intentional and some not, and some utilizing physical force and some not.” 2002-NMCA-016, ¶ 15. Thus, some incidents of vehicular homicide qualify as serious violent offenses and some do not. It is only the evidence of a particular inci-dentthatqualifiesadefendant’scrimeasadiscretionary serious violent offense. We conclude that the particular circumstances of Defendant’s history with alcohol and the law was relevant to the Morales inquiry into intent, andwe are satisfied that thisconclusion does not generally elevate ve-hicular homicide to a per se violent offense. See State v. Worrick, 2006-NMCA-035, ¶ 9, 139 N.M. 247, 131 P.3d 97 (considering the defendant’s extremely high blood alcohol content at the time of the accident as well as that the defendant “habitually drank to the point of intoxication two times a week”); see also Montoya, 2005-NMCA-078, ¶¶ 9-10 (“The knowledge aspect is shown by the long, prior history of a drinking prob-lem.”); State v. Wildgrube, 2003-NMCA-108, ¶ 37, 134 N.M. 262, 75 P.3d 862 (evaluating, for the purposes of the EMDA, the defendant’s previous four arrests for alcohol-related offenses and two convic-tions for driving while intoxicated).2. Physically Violent Manner{16} Defendant next argues that the “fact that [Defendant] crossed the center and hit a bicyclist, while ostensibly going to the manner in which the crime was committed, doesnotsufficientlyestablishthat[Defen-dant’s] act was committed in a particularly violent manner.” Defendant also contends that nearly all vehicular homicides cause a particularly violent death for the victim and that the district court impermissibly relied on an element of vehicular homicide in order to designate the crime a serious violent offense.

{17} This Court has not previously beenrequiredtodefine“physicallyviolentmanner.” The Morales Court, however, acknowledged that even though the record in that case was sparse, there might have beenafactualbasisforthefindingsneces-sary to establish a serious violent offense. 2002-NMCA-016, ¶ 18. Although Morales ultimately remanded the issue to the district courttomakethefindingsontherecord,this Court observed that the defendant “used physical force with his daughter in a manner that indicated an intent to do so” and that the victim suffered some harm. Id. Thus, the term “physically violent manner” includes the intentional use of force that results in some harm. In the present case, thedistrictcourt’sfindings—findingsthatwere missing in Morales—directly address the use of physical force, intent, and harm to the victim. See id. ¶ 16 (“[T]he [L]egis-lature wanted to reserve the serious violent offenses for those found by the trial judge to be committed in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowledge that one’s acts are reasonably likely to result in serious harm. Of course, the statutory factor of actual resulting harm may be considered in determining a defendant’s intent.” (internal quotation marks omitted)). Defendant recklessly veered across the center line and struck the victimwithsufficientforce topropelherinto the bed of Defendant’s truck. These facts directly relate to whether force was used in a violent manner. See id. ¶ 18.{18} Defendant additionally insists that the district court is required to consider the physically violent manner in which the offense was committed and not the physi-cally violent death of the victim. In State v. Loretto, 2006-NMCA-142, 140 N.M. 705, 147 P.3d 1138, this Court explained that “[s]omething more than the mere ele-mentsinthedefinitionof[thecrime]needto be shown to designate the crime as a serious violent offense.” Id. ¶ 18. One of the elements of vehicular homicide is that the defendant commit homicide by using a motor vehicle. See § 66-8-101(A). The facts set out in the preceding paragraphs demonstrate that the district court consid-ered more than the mere use of a vehicle to commit the homicide: Defendant recklessly operated the truck at a high rate of speed that caused the victim, once struck, to be “propelled . . . through the air and into the bed of Defendant’s truck.” We are thus satisfiedthatthefindingssufficientlydetailthe violent manner in which the crime was

committed and not merely the elements of the crime or the violent nature of the victim’s death.{19} We now turn to consider whether thesefindingsaresupportedbysufficientevidence.D. Sufficiency of the Evidence1. Begay v. United States{20} The focus of Defendant’s suffi-ciency argument is that this Court should reconsider the application of a serious violent offense designation to the crime of vehicular homicide in light of the recent holdings and analysis of Begay v. United States, ___ U.S. ___, 128 S. Ct. 1581 (2008). In Begay, the Supreme Court of the United States was concerned with whether the crimeof driving under the influenceof alcohol should be considered a violent felony as described by 18 U.S.C. § 924(e)(1) (2000) (amended 2005 and 2006) of the Armed Career Criminal Act (ACCA). Begay, ___ U.S. at ___, 128 S. Ct. at 1583. 18 U.S.C. § 924(e)(1) provides that

[i]n the case of a person who violates [18 U.S.C. §] 922(g) [(2002)] of this title and has three previous convictions by any court referred to in [18 U.S.C. §] 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall befined under thistitle and imprisoned not less than fifteen years, and, notwithstand-ing any other provision of law, the court shall not suspend the sentence of, or grant a probation-ary sentence to, such person[.]

The district court in Begay determined that the defendant’s three prior convictions fordrivingundertheinfluenceofalcoholconstituted violent felonies and imposed theresultingmandatoryfifteen-yearprisonterm. ___ U.S. at ___, 128 S. Ct. at 1584. The Supreme Court of the United States disagreed and held that Congress did not intend “to bring within the statute’s scope these kinds of crimes, far removed as they are from the deliberate kind of behavior associated with violent criminal use of firearms.” Id. at 1587. Defendant argues that the Begay construction of the term “violent felony” leads to a conclusion that the EMDA has been improperly construed by New Mexico courts to include overly general and common occurrences of ve-hicular homicide. We are unpersuaded that Begay requires us to reconsider our previ-ous constructions of the EMDA.


{21} We first observe that under the ACCA,drivingundertheinfluenceisnotanoffensespecifically listedasaviolentfelony. The ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), provides a list of examples of crimes that are violent felonies such as bur-glary, arson, extortion, or crimes involving explosives. This list is clearly not exhaus-tive, see 18 U.S.C. § 924(e)(2)(B) and, therefore, the Begay Court was required to analogize the crime of driving under theinfluencetotheotherexemplarcrimesthat are listed in the ACCA. ___ U.S. at ___, 128 S. Ct. at 1584-85 (“In our view, the provision’s listed examples—burglary, arson, extortion, or crimes involving the use of explosives—illustrate the kinds of crimes that fall within the statute’s scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that presents a serious potential risk of physical injury to another.” (internal quotation marks and citation omitted)). Such analogy is not required in the pres-ent case because third degree vehicular homicide is an offense listed in the EMDA as a discretionary serious violent offense. See § 33-2-34(L)(4)(o)(14). There is thus no need to compare Defendant’s crime with the other listed crimes because the Legislature clearly intended to include vehicular homicide within the scope of the EMDA when the district court “judges the crime to be a serious violent offense.” Id. {22} The Begay Court was also concerned that statutes prohibiting driving under the influence “typically do not insist onpurposeful, violent, and aggressive con-duct; rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all.” ___ U.S. at ___, 128 S. Ct at 1586-87. The examples of violent felonies in the ACCA, however, “all typically involve purposeful, violent, and aggressive conduct.” Id. at ___, 128 S. Ct. at 1586 (internal quotation marks and citation omitted). Defendant makes a similar point that “[b]y including third[ ]de-gree homicide in a statute where the intent requirementisotherwisespecific,the[L]egislature evidently intended for there to be a somewhat heightened intent requirement for a particular vehicular homicide case to constitute a serious violent offense.” The concerns of the Begay Court and Defendant were addressed by this Court’s holding in Morales.{23} In Morales, this Court compared the list of per se offenses from Section

33-2-34(L)(4)(a) through (n) with the dis-cretionary offenses described in Section 33-2-34(L)(4)(o). We observed that the per se offenses “all involve an intent to do the harmprohibitedbythestatute,oraspecificintent to kill or injure, or knowledge that one’s acts are reasonably likely to cause serious harm.” Morales, 2002-NMCA-016, ¶ 14. The discretionary offenses, however, “are characterized by multiple ways of committing the offense, some intentional and some not, and some utilizing physical force and some not.” Id. ¶ 15. We concluded that

the [L]egislature wanted to re-serve the serious violent offenses for those found by the trial judge to be committed in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowl-edge that one’s acts are reasonably likely to result in serious harm.

Id. ¶ 16. Thus, in order for one of the discre-tionary crimes to be designated as a serious violentoffense,thedistrictcourtmustfindthat it was committed with “an intent to do serious harm” or “with recklessness.” Id.{24} Defendant argues that reckless-ness is an insufficient level of intent tosupport a serious violent offense designa-tion. For support, Defendant again cites Begay, in which the Supreme Court of the United States rejected the application of a recklessness standard because unlike the other crimes listed in the ACCA, the act of driving drunk “need not be purposeful or deliberate.” ___ U.S. at ___, 128 S. Ct. at 1587. Taking our cue from the Begay Court and comparing vehicular homicide to the other enumerated discretionary serious violent offenses, we conclude that reckless-ness is an acceptable level of intent. Other discretionary crimes listed under Section 33-2-34(L)(4)(o) incorporate the reckless-ness standard or in some circumstances, the lesser negligence standard. See State v. Yarborough, 120 N.M. 669, 674, 905 P.2d 209, 214 (Ct. App. 1995) (requiring con-duct that is “reckless, wanton, or willful” in order to establish involuntary manslaughter (internal quotation marks and citation omit-ted)), aff’d, 1996-NMSC-068, 122 N.M. 596, 930 P.2d 131; see also NMSA 1978, § 30-6-1(D), (E) (2005) (amended 2009) (identifying the intent for child abuse as “knowingly, intentionally or negligently, and without justifiable cause). Indeed, recklessnessisevensufficientforatleastone of the per se offenses under Section 33-2-34(L)(4)(a) through (n). See NMSA

1978, § 30-3-8(B) (1993) (“Shooting at or from a motor vehicle consists of willfully dischargingafirearmator fromamotorvehicle with reckless disregard for the person of another.”).{25} Begay also focused on the unique purpose of the ACCA: “the [ACCA] fo-cuses upon the special danger created when a particular type of offender—a violent criminal or drug trafficker—possesses agun.” ___ U.S. at ___, 128 S. Ct. at 1587. Because the ACCA focuses on preventing certain types of offenders from owning guns, the Begay Court had “no reason to believe that Congress intended to bring within the statute’s scope these kinds of crimes, far removed as they are from the deliberate kind of behavior associated with violentcriminaluseoffirearms.”Id. The purpose of the EMDA is entirely different: “In the EMDA, the Legislature has estab-lished a detailed set of guidelines for both the courts and the corrections department to administer in the ultimate determination of a prisoner’s eligibility for good time re-ductionsfromhisperiodofconfinement.”Rudolfo, 2008-NMSC-036, ¶ 35. The pur-pose of the EMDA is not to prevent certain types of offenders from obtaining weapons. Instead, the EMDA is designed to reduce theperiodofconfinementbyadesignatednumber of days each month of time served for the perpetrators of certain offenses that have been specifically delineated by theLegislature. We therefore see every reason to believe that the Legislature intended to bring certain instances of vehicular homi-cide within the scope of the EMDA and are not persuaded that Begay requires a different result.2. Evidence at Sentencing{26} In addition to relying on Begay, Defendant also argues that the evidence was simply insufficient to establish thathis conduct constituted a serious violent offense. This argument is distinct from Defendant’s earlier argument regarding the adequacyof the district court’sfind-ings. See Scurry, 2007-NMCA-064, ¶ 4 (decliningtoaddressthesufficiencyoftheevidence after concluding that the find-ingswereinsufficientasamatteroflaw).Having determined that the district court’s findings are legally adequate,we reviewthe record to ascertain whether the facts supportthefindingsandhence,theseriousviolent offense designation.{27} As we have stated, in order to des-ignate a particular crime as a serious violent offense,thedistrictcourtmustfindthatitwas “committed in a physically violent


manner either with an intent to do serious harm or with recklessness in the face of knowledge that one’s acts are reasonably likely to result in serious harm.” Morales, 2002-NMCA-016, ¶ 16. Defendant argues that in addition to the Morales criteria, the State must also demonstrate that this particular vehicular homicide differs from other homicides caused by intoxicated or otherwise impaired drivers. We are satis-fied that theMorales criteria adequately separate the average vehicular homicide from a properly designated serious violent offense and, thus, we decline to consider whether Defendant’s acts were “notably worse than any other such case.”{28} Morales explained how vehicular homicide can be committed with and with-out the requisite intent:

[H]omicide by vehicle always results in death, but it can be com-mitted by one who had only one drink but is thereby less able to drive safely, or it can be commit-ted by one who intentionally and habitually gets drunk to the point of being several times over the legal limit, knowing that he or she must drive in a crowded area and is in no shape to do so, but does so nevertheless.

Id. ¶ 15. In the present case, the district court based the serious violent offense designation in part on Defendant’s his-tory of alcoholism and alcohol-related offenses. This history is supported by the facts revealed at the sentencing hearings. See Montoya, 2005-NMCA-078, ¶¶ 8-9 (reviewing the facts and circumstances

before the district court to determine if substantial evidence supported the serious violent offense designation). {29} Apart from the two convictions for drivingundertheinfluencethatwereusedto enhance the sentence, Defendant also had earlier alcohol-related accidents and encounters with the police, ranging back at least as far as 1993. One of these accidents resulted in bodily injury to a victim. The district court additionally noted that Defen-dant had many opportunities for treatment but failed to embrace them. After remand by this Court, the district court explained that the serious violent offense designation was based on Defendant’s history with alcohol, his refusal to address the problem, and his insistence on continuing to drive while drunk. The district court further referred to evidence that other people had tried to prevent Defendant from driving on the day of the accident. To summarize, De-fendant had a long history of alcohol abuse, previous experience with injuring a person because of alcohol impairment, and he disregarded advice to refrain from driving whileundertheinfluence.Wearesatisfiedthatthisevidenceissufficienttoestablishthat Defendant acted with recklessness in the face of knowledge that his acts were reasonably likely to result in serious harm. See Wildgrube, 2003-NMCA-108, ¶ 38; Morales, 2002-NMCA-016, ¶¶ 15, 16.{30} We further hold that the evidence supported thedistrictcourt’sfinding thatDefendant used physical force and that actual harm resulted. See Morales, 2002-NMCA-016, ¶ 18. Although we acknowl-edge that any vehicular homicide employs

some level of physical force, the district courtmadefindingsthatarespecifictotheforce used in and the harm caused by this particular vehicular homicide: Defendant drove recklessly while intoxicated, crossed the center line, and struck the victim on a bicycle at such a rate of speed that she was thrown over the truck and into Defen-dant’s truck bed. In addition, the district court considered the “resulting harm” by accepting the statements of the victim’s family regarding the emotional impact of the victim’s death. See id. ¶ 13 (“[R]esult-ing harm must be considered along with the nature of the offense to determine if a listed offensequalifies.”).Thedistrictcourtdidnot abuse its discretion by relying on these facts to establish that the Defendant acted in a physically violent manner. See Wildgrube, 2003-NMCA-108, ¶ 38 (concluding that the evidence supported a serious violent offense designation when the defendant recklessly drove while intoxicated, looked away from the road, and hit and killed a pedestrian).{31} Review of the record demonstrates that the facts supported the district court’s findingsandthedesignationofDefendant’sconduct as a serious violent offense.III. CONCLUSION{32} Weaffirmthedistrictcourt.{33} IT IS SO ORDERED. CELIA FOY CASTILLO, Judge

WE CONCUR:JONATHAN B. SUTIN, JudgeLINDA M. VANZI, Judge





Topic Index:Children: Children’s Code

Constitutional Law: Double JeopardyCriminal Law: Child Abuse and Neglect

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusJONATHAN DIGGS and REBECCA MILLER,

Defendants-Appellants. No. 27,812 (filed: June 30, 2009)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYROSS C. SANCHEZ, District Judge

GARy K. KINGAttorney GeneralANN M. HARvEy

Assistant Attorney GeneralSanta Fe, New Mexico

for Appellee

HUGH W. DANGLERChief Public DefenderKARL ERICH MARTELL

Assistant Appellate DefenderSanta Fe, New Mexico

for Appellants

opinion

JaMes J. Wechsler, Judge

{1} Defendants Jonathan Diggs and Re-becca Miller appeal in advance of their trial from the district court’s denial of their motions to dismiss on double jeopardy grounds. We consider whether the New Mexico Constitution and double jeopardy statute prohibit the State from prosecuting Defendants for child abuse because the Children, Youth and Families Department (CYFD) previously investigated Defen-dants for child abuse and the Acoma Pueblo tribal court previously held a custody hearing on the same issues. We hold that there was no double jeopardy violation and affirm.BACKGROUND{2} Defendants’ child was treated at Pres-byterian Hospital for bruises and broken bones in different stages of healing, includ-ing rib fractures, clavicle fracture, radius fracture, humerus fracture, and femur frac-ture over the course of several months. As a result of these injuries, CYFD representa-tives contacted Defendants and informed them that they could avoid placing the child in foster care if they agreed to give the

child’s paternal grandparents guardianship. Defendants agreed to temporary guardian-ship. CYFD found the allegations of child abuse to be unsubstantiated. However, the child was not returned to Defendants because the child’s paternal grandmother, a member of Acoma Pueblo, sought per-manent guardianship in the Acoma Pueblo tribal court. The tribal court ultimately returned the child to Defendants.{3} Several months later, the State charged Defendantswithfivecountsofchildabuse.Defendants filedmotions to dismiss ondouble jeopardy grounds. The district court denied Defendants’ motions to dismiss and thenapprovedthecertificationoftheissueforappellatereview.Defendantsfiledforimmediate appeal pursuant to State v. Apo-daca, 1997-NMCA-051, ¶ 17, 123 N.M. 372, 940 P.2d 478.PRE-TRIAL APPEAL{4} Wefirst address theState’s concernthat Defendants have no right to a pre-trial appeal. The State argues that Defendants’ pre-trial appeal is inappropriate under Apodaca because, unlike the defendant in Apodaca, Defendants in this case have not yet gone through a criminal trial. See id. ¶¶ 16-17. Apodaca held that a defendant may

directly appeal to this Court a denial of the defendant’s motion to dismiss charges based on double jeopardy grounds. Id. ¶ 17. In its explanation, Apodaca stated that certain interests override the unwanted result of “piecemeal appeals” and “justify invocation of the constitutional right to ap-pealwhenfinaljudgmenthasnotyetbeenentered[, but s]uch interests must be of the greatest importance.” Id. ¶ 16. Apodaca further explained that “a defendant’s right not to be subjected to a second trial for the same offense could not be remedied once the second trial has taken place.” Id. The State argues that Defendants do not need protection against being subjected to a second trial for the same offense because they “have not been subjected to trial on the child abuse offenses.”{5} The State’s argument is circular in its rationale because it assumes the conclu-sion that is the very issue underlying the double jeopardy claim in this appeal—that Defendants have not previously been placed in jeopardy. If we were to deny Defendantstheabilitytofileapre-trialap-peal on double jeopardy grounds because Defendants may not succeed in the claim, we would undermine the holding in Apo-daca. Therefore, although we ultimately hold Defendants’ double jeopardy rights are not violated, we will not disallow Defendants from making the argument. Further, because even civil actions that are punitive in nature can trigger double jeopardy violations, we will not prohibit Defendants from making their double jeopardy argument under Apodaca, even absent a prior criminal trial. See, e.g., State v. Nuñez, 2000-NMSC-013, ¶ 4, 129 N.M. 63,2P.3d264(filed1999)(recognizingadouble jeopardy violation based on a civil vehicle forfeiture).DOUBLE JEOPARDY{6} The New Mexico Constitution’s double jeopardy clause states that “[n]o person shall . . . be twice put in jeopardy for the same offense.” N.M. Const. art. II, § 15. Our double jeopardy statute similarly states that “[n]o person shall be twice put in jeopardy for the same crime.” NMSA 1978, § 30-1-10 (1963). Our Supreme Court provided the basic framework for a double jeopardy analysis in State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 626, 904 P.2d 1044, 1051 (1995): “(1) whether the [s]tate subjected the defendant to sepa-rate proceedings; (2) whether the conduct precipitating the separate proceedings consisted of one offense or two offenses; and (3) whether the penalties in each of


the proceedings may be considered ‘pun-ishment’ for the purposes of the Double Jeopardy Clause.”{7} The Court later modified the third Schwartz requirement in City of Albuquer-que v. One (1) 1984 White Chevy, 2002-NMSC-014, 132 N.M. 187, 46 P.3d 94. To determine whether a sanction is remedial or punitive, White Chevy requires a reviewing court to evaluate the Legislature’s “purpose in enacting the legislation, rather than evaluating the effect of the sanction on the defendant. Then the court must determine whetherthesanction...wassufficientlypunitive in its effect that, on balance, the punitive effects outweigh the remedial effect.” Id. ¶ 11 (internal quotation marks and citation omitted); see State v. Kirby, 2003-NMCA-074, ¶¶ 19, 22, 133 N.M. 782, 70 P.3d 772 (utilizing the Schwartz test and the White Chevymodificationinadouble jeopardy analysis regarding securi-ties violations).{8} Relying on Nuñez, Schwartz, and White Chevy, Defendants argue that the State prosecuting Defendants for child abuse would be a violation of their double jeopardy protections because the sanction imposed by CYFD and the tribal court—removal of Child from Defendants for four-teen months during the CYFD investigation and the tribal court proceedings—was more punitive than remedial, and, thus, Defen-dants “are now being put in jeopardy a second time for the same acts.” We review double jeopardy issues de novo. State v. Saiz, 2008-NMSC-048, ¶ 22, 144 N.M. 663, 191 P.3d 521.{9} Our Supreme Court in Schwartz held that there was no double jeopardy violation because the civil sanction imposed on the defendant was more remedial than punitive. See Schwartz, 120 N.M. at 635, 904 P.2d at 1060. The defendant in Schwartz was subject to an administrative revocation of his driver’s license, followed by prosecu-tion for driving while intoxicated. 120 N.M. at 622-23, 904 P.2d at 1047-48. The Court held that the administrative proceeding and the criminal prosecution were two separate proceedings and were predicated on the same offense. Id. at 626-28, 904 P.2d at 1051-53. The Court’s analysis therefore rested on whether the sanction was more remedial or punitive. The Court stated that a sanction that serves a remedial purpose, even if it also serves a retributive or deter-rent one, is not to be considered punishment for double jeopardy purposes. Id. at 633-34, 904 P.2d at 1058-59. The Court therefore found that the purpose behind the Implied

Consent Act, 1978 NMSA, §§ 66-8-105 to -112 (1978, as amended through 2007), to enforce regulatory compliance and protect the public, was remedial and not punitive, regardless of the deterrent effect on the defendant. Schwartz, 120 N.M. at 635, 904 P.2d at 1060.{10} In White Chevy, the Court again held that there was no double jeopardy vio-lation because the civil sanction was more remedial than punitive. See White Chevy, 2002-NMSC-014, ¶ 2. In that case, the de-fendants were convicted on criminal driving while intoxicated charges, followed by civil forfeiture actions under a city ordinance. Id. ¶ 4. The Court held that the purpose of the ordinance at issue was to “protect the health and safety of the citizens . . . by abating motor vehicle nuisances.” Id. ¶ 6. Because the ordinance was aimed at protecting the public, not punishing a defendant, the Court held that the sanction was remedial and, therefore, there was no double jeopardy violation. Id. ¶¶ 18-19. The Court reiterated that “[a]lthough a civil penalty may cause a degree of punishment for the defendant, such a subjective effect cannot override the legislation’s primarily remedial purpose.” Id. ¶ 11.{11} Conversely, in Nuñez, the Court held that there was a double jeopardy violation after determining that a vehicle forfeiture under the Controlled Substances Act, NMSA 1978, §§ 30-31-1 to -41 (1972, as amended through 2008), was punitive in nature and, thus, combinedwith thefirsttwo Schwartz requirements, established a double jeopardy violation. Nuñez, 2000-NMSC-013, ¶¶ 55, 59, 94. The Supreme Court explained that, unlike Schwartz, the applicable statutes in Nuñez, concerning possession of drugs, “do not concern a regulated lawful activity, but rather an il-legal criminal activity.” Id. ¶ 52. The Court thus concluded that forfeitures under the Controlled Substances Act were not de-signed to be and could never be remedial, but, instead, “their purposes and intentions are primarily punitive.” Id.{12} In the present case, Defendants were subject to CYFD and tribal court pro-ceedings regarding custody of the child, fol-lowed by the State prosecuting for criminal childabuse.Weneednotaddressthefirstand second Schwartz requirements because the third is dispositive in this case: whether the alleged penalty, Defendants’ separa-tion from the child during the CYFD and tribal court proceedings, would be deemed remedial or punitive upon evaluation of the Children’s Code’s purpose and effect.

See White Chevy, 2002-NMSC-014, ¶ 11; Schwartz, 120 N.M. at 626, 904 P.2d at 1051.{13} We begin by evaluating the Leg-islature’s purpose as enumerated in the Children’s Code.

A. first to provide for the care, protection and wholesome mental and physical development of children coming within the provisions of the Children’s Code and then to preserve the unity of the family whenever possible. The child’s health and safety shall be the paramount concern. Permanent separation of the child from the family, however, would especially be considered when the child or another child of the parent has suffered permanent or severe injury or repeated abuse. It is the intent of the [L]egislature that, to the maximum extent pos-sible, children in New Mexico shall be reared as members of a family unit;

B. to provide judicial and other procedures through which the provisions of the Children’s Code are executed and enforced and in which the parties are as-sured a fair hearing and their con-stitutional and other legal rights are recognized and enforced;

C. to provide a continuum of services for children and their families, from prevention to treatment, considering whenever possible prevention, diversion and early intervention, particu-larly in the schools;

D. to provide children with services that are sensitive to their cultural needs;

E. to provide for the coop-eration and coordination of the civil and criminal systems for investigation, intervention and disposition of cases, to minimize interagencyconflictsandtoen-hance the coordinated response of all agencies to achieve the best interests of the child victim; and

F. to provide continuity for children and families appearing before the children’s court by as-suring that, whenever possible, a single judge hears all successive cases or proceedings involving a child or family.


NMSA 1978, § 32A-1-3 (1999) (amended 2009); 2009 N.M. Laws, ch. 239. The Legislature sought to provide for the care, protection, and development of children and to ensure that procedures were in place to effectuate that goal. See id. The Legislature couched each aspect of the purposeintermsofbenefitstoandprotec-tion of children. In short, the Legislature clearly established that the purpose of the Children’s Code is to ensure that the best interests of children are met. See In re Christobal V., 2002-NMCA-077, ¶ 15, 132 N.M. 474, 50 P.3d 569 (recognizing that “the legislative purpose of the Children’s Code is to provide judicial and other proce-dures through which the provisions of the Children’s Code are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights are recognized and enforced” (internal quotation marks and citation omit-ted)); In re Jade G., 2001-NMCA-058, ¶ 19, 130 N.M. 687, 30 P.3d 376 (stating that the purpose section “is an instruc-tion to interpret the [Children’s] Code to provide procedures for fair hearings and enforcement of rights”). Nowhere in Sec-tion 32A-1-3 does it mention punishment against the parents or guardians.{14} We next consider whether, under the White Chevy test, “the sanction estab-lishedby the legislationwas sufficientlypunitive in its effect that, on balance, the punitive effects outweigh the remedial ef-fect.” 2002-NMSC-014, ¶ 11. Defendants claim that their separation from the child for the fourteen months during which the CYFD and tribal court proceedings oc-curred constituted a sanction in which the punitive effect outweighed any remedial effect. Defendants were indeed separated from the child; however, the separation

occurred because Defendant Miller, the pri-mary caretaker at the time, agreed to tem-porary guardianship based on the child’s injuries documented at the hospital.{15} Further, unlike the Controlled Sub-stances Act in Nuñez, the Children’s Code contemplates regulated lawful activity. See Nuñez, 2000-NMSC-013, ¶ 52. The Children’s Code does not address sanc-tions at all, but instead seeks to protect the best interest of children, more akin to the purpose of protecting the public as stated in Schwartz and White Chevy. See § 32A-1-3. As discussed, the Legislature intended for the Children’s Code “to provide for the care, protection and wholesome mental and physical development of children coming within the provisions of the Children’s Code and then to preserve the unity of the family whenever possible. The child’s health and safety shall be the paramount concern.” Section 32A-1-3(A). While the Legislature made clear its intention that the unity of the family be preserved when possible, it also made clear that the child’s “health and safety [is] the paramount con-cern.” Id.{16} In this case, CYFD initiated its investigation because of the child’s injuries and recommendations from hospital per-sonnel. The CYFD proceedings furthered the Legislature’s purpose of providing for the care and protection of the child and ensured that the child’s health and safety were the paramount concern. Nothing in the record indicates that the CYFD investigation or the ensuing temporary guardianship were triggered out of a desire or intent to punish Defendants. Moreover, although the tribal court held a hearing on the paternal grandmother’s motion for per-manent guardianship that resulted in longer separation of Defendants from the child, as

discussed, Defendant Miller agreed to the temporary guardianship and, ultimately, regained custody of the child. We decline to hold that Defendants were punished by the occurrence of the CYFD and tribal court proceedings.{17} Finally, Defendants argue that, pursuant to Ashe v. Swenson, 397 U.S. 436, 443 (1970), their prosecutions violate the collateral estoppel aspect of double jeop-ardy because “both CYFD and [the tribal court] found the abuse allegations to be un-substantiated,” CYFD and the State worked together on the CYFD investigation, and, therefore, the prosecution for child abuse cannot be litigated between these same parties. Ashe held that “when an issue of ultimate fact has once been determined by avalidandfinaljudgment,thatissuecannotagain be litigated between the same par-ties in any future lawsuit.” Id. Defendants havenotreferencedafinaljudgmentthatdetermined an issue of ultimate fact in the criminal prosecutions. Without any record to support Defendants’ argument, we will not review their claim. State v. Jim, 107 N.M. 779, 780, 765 P.2d 195, 196 (Ct. App. 1988) (“It is [the] defendant’s burden to bringuparecordsufficientforreviewofthe issues he raises on appeal.”). As such, Defendants have failed to establish double jeopardy based upon the theory of collateral estoppel.CONCLUSION{18} Weaffirm thedistrict court’s de-nial of Defendants’ motions to dismiss on double jeopardy grounds.{19} IT IS SO ORDERED. JAMES J. WECHSLER, Judge

WE CONCUR:JONATHAN B. SUTIN, JudgeTIMOTHY L. GARCIA, Judge


Certiorari Denied, No. 31,864, August 20, 2009



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

Civil Procedure: Summary JudgmentInsurance: Coverage; Motor vehicle Insurance; Regulation of Insurance; and

Uninsured or Underinsured Motorist

CARMEN ARIAS, Plaintiff/Counter-Defendant-Appellant,

versusPHOENIX INDEMNITy INSURANCE COMPANy,

Defendant/Counter-Plaintiff-Appellee.No. 28,282 (filed: July 9, 2009)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYTED C. BACA, District Judge

RICHARD J. vALLEC.D. CARTER, III

CARTER LAW FIRM, P.C.Albuquerque, New Mexico

for Appellant

BRUCE S. MCDONALDLAW OFFICES OF

BRUCE S. MCDONALDAlbuquerque, New Mexico

for Appellee

opinion

Michael e. vigil, Judge

{1} This case presents yet another op-portunity to address what constitutes a valid rejection of uninsured/underinsured motorist (UM/UIM) coverage under our Uninsured Motorist Act (UMA), NMSA 1978, §§ 66-5-301 to -303 (1978, as amended through 2003). The insured (Plaintiff) signed a rejection of such cov-erage as part of her initial application for insurance, and a copy of the application was given to her at that time. However, since the application and rejection were not physically attached to the insurance policy that Plaintiff eventually received from the insurer, we conclude that the rejection was ineffective under an ad-ministrative regulation that requires the rejection of coverage to be made a part of the policy delivered to the insured. Accordingly, we reverse the district court order granting summary judgment in favor of the insurer to the extent that it relied on Plaintiff’s ostensible rejection of UM/UIM coverage. We do not address the insurer’s related offset and stacking arguments in favor of summary judgment

because the district court should rule on thoseargumentsinthefirstinstance.BACKGROUND{2} Plaintiff was involved in a motor vehicle accident with another motorist (the tortfeasor) and settled her claim against the tortfeasor for his policy limits of $25,000. Plaintiff then made a demand against her automotive policy, issued by Defendant, Phoenix Indemnity Insurance Co. (Phoenix Indemnity), for UM/UIM coverage. Phoenix Indemnity denied Plaintiff such coverage on the basis that Plaintiff had rejected UM/UIM coverage in her initial application for insurance. As a result of the denial, Plaintiff brought suit against Phoenix Indemnity, asserting that the tortfeasor’s policy limits were inadequate compensation for her physi-cal injuries sustained in the accident and seeking a declaratory judgment that she was entitled to UM/UIM coverage under her automobile insurance policy. {3} Phoenix Indemnity counterclaimed for a declaratory judgment and moved for summary judgment, asserting that Plaintiff had validly rejected UM/UIM coverage as part of the policy application process. In response, Plaintiff argued that

the rejection in her application was legally ineffective because Phoenix Indemnity failed to include the rejection in the policy endorsements or to attach the rejection to her policy. {4} For purposes of the summary judg-ment proceedings, the parties stipulated to the following facts: Plaintiff was in-volved in an automobile accident with the tortfeasor, presented a claim against the tortfeasor’s insurance, and settled for the full amount of the tortfeasor’s $25,000 liability coverage. At the time of the accident, Plaintiff was insured by Phoenix Indemnity and had two vehicles insured under her policy. Plaintiff’s coverage under her policy began when she applied for the policy. As part of her application, Plaintiff indicated that she wanted to reject UM/UIM coverage and signed an agreement to delete such cover-age. Plaintiff also signed an applicant’s statement providing that “I have read this application and declare that all statements are true to the best of my knowledge and belief,” and she was provided with a copy of her application at the conclusion of the application process. The application, and its signed agreement to delete UM/UIM coverage, was not physically attached to the insurance policy. Nor did the policy declarations page provided to Plaintiff containanyspecificreferencetoherrejec-tion of UM/UIM coverage. {5} At the conclusion of the summary judgment hearing, the district court an-nounced its decision from the bench. Relying on the stipulations that Plaintiff, as part of her application, signed an agreement to delete UM/UIM coverage and was given a copy of her application, the district court ruled that Plaintiff’s re-jection of UM/UIM coverage was valid. Plaintiff appeals from the subsequent written order granting summary judgment in favor of Phoenix Indemnity.DISCUSSIONStandard of Review{6} Summary judgment is properly granted when there are no genuine is-sues of material fact and the movant is entitled to judgment as a matter of law. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. On appeal, we review de novo the district court decision to grant summary judgment. Rehders v. Allstate Ins. Co., 2006-NMCA-058, ¶ 12, 139 N.M. 536, 135 P.3d 237. We also review de novo questions of statutory construc-tion. State Farm Mut. Auto. Ins. Co. v.


Luebbers, 2005-NMCA-112, ¶ 6, 138 N.M. 289, 119 P.3d 169. As referenced above, in the present case, the parties stipulated to certain facts for purposes of the summary judgment proceedings. See Haaland v. Baltzley, 110 N.M. 585, 588, 798 P.2d 186, 189 (1990) (providing that stipulated facts are not reviewable on ap-peal). Consequently, our review is limited to examining whether the district court properly applied the law to such facts. See Romero Excavation & Trucking, Inc. v. Bradley Constr., Inc., 1996-NMSC-010, ¶¶ 4-5, 121 N.M. 471, 913 P.2d 659. Requirements for a Valid Rejection of UM/UIM Motorist Coverage {7} In New Mexico, it is statutorily man-dated that insurance companies include in automobile policies UM/UIM cover-age ranging from the minimum statutory limits set forth in NMSA 1978, Section 66-5-215 (1983), and up to the limits of liability coverage contained in a policy. See § 66-5-301(A), (C). This requirement embodies a strong public policy “to ex-pand insurance coverage and to protect individual members of the public against the hazard of culpable uninsured [and underinsured] motorists.” See Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990). The legislative intent in requiring such coverage is to put the insured in the same position he or she would have been in if the tortfeasor had liability coverage equal to the UM/UIM protection as provided by the insured’s policy. See Morro v. Farmers Ins. Group, 106 N.M. 669, 670, 748 P.2d 512, 513 (1988). {8} An insured, however, may elect to reject UM/UIM coverage. See § 66-5-301(C). But to be effective, such rejection must satisfy the regulations promulgated by the superintendent of insurance. See Kaiser v. DeCarrera, 1996-NMSC-050, ¶ 8, 122 N.M. 221, 923 P.2d 588; see also § 66-5-301(A) (authorizing the superinten-dent of insurance to promulgate regula-tions governing UM/UIM coverage). The applicable regulation, 13.12.3.9 NMAC (11/30/01), provides:

The rejection of the provisions covering damage caused by an uninsured or unknown motor ve-hicle as required in writing by the provisions of Section 66-5-301 . . . must be endorsed, attached, stamped or otherwise made a part of the policy of bodily injury and property damage insurance.

{9} As stated in Romero, the purpose of

the regulation is to ensure that an insured hasaffirmativeevidenceoftheextentofcoverageso that“[u]ponfurther reflec-tion, consultation with other individuals, or merely after having an opportunity to review one’s policy at home, an in-dividual may well reconsider his or her rejection of uninsured motorist cover-age.” 111 N.M. at 156, 803 P.2d at 245. Furthermore, because rejection of UM/UIM coverage detracts from the public policy of providing reparation for those injured by uninsured and underinsured drivers, we liberally interpret the UM statute to implement the remedial purpose of protecting the insured. See Chavez v. State Farm Mut. Auto. Ins. Co., 87 N.M. 327, 329, 533 P.2d 100, 102 (1975). Ac-cordingly, any exception to UM/UIM coverage is construed strictly to protect the insured. See Romero, 111 N.M. at 156, 803 P.2d at 245. {10} To this end, our Supreme Court has directed that a rejection of UM/UIM coverage is ineffective, regardless of the parties’ intent, if it is not “endorsed, attached, stamped or otherwise made a part of the policy.” See Kaiser, 1996-NMSC-050, ¶¶ 8, 10, 14 (holding that even though the insured had knowingly and intentionally signed a form rejecting UM/UIM coverage, such rejection was ineffective because the rejection was not included in the policy delivered to the insured). As such, Phoenix Indemnity’s reliance on Plaintiff’s purported knowl-edge that she rejected coverage in the application process is unavailing. {11} We recognize there is some ques-tion whether the knowledge and intent of the parties may become relevant whentheauthenticityoftheaffirmativeevidence of a rejection is challenged. See Marckstadt v. Lockheed Martin Corp., 2008-NMCA-138, ¶¶ 21-24, 145 N.M. 90, 194 P.3d 121 (questioning the need for affirmative evidence of a rejectionwhen “the insured maintains that he or she never doubted whether UM cover-age had been rejected”), cert. granted, 2008-NMCERT-010, 145 N.M. 524, 201 P.3d 855; see also Vigil v. Rio Grande Ins. of Santa Fe, 1997-NMCA-124, ¶¶ 6, 24, 124 N.M. 324, 950 P.2d 297 (“[W]e de-cline to require an insurer to provide UM coverage in the face of clear evidence that the insured did not choose such cover-age and knew it was not included in the policy.”). In Marckstadt and Vigil, either an endorsement or declaration page was included with the insurance policy, and

the questionwaswhether the affirma-tive evidence of rejection needed to be signed by the named insured. Neither case detracts from the absolute regulatory requirement that any rejection must “be endorsed, attached, stamped or otherwise made a part of the policy.” See Romero, 111 N.M. at 155, 803 P.2d at 244 (provid-ing that “unless the named insured rejects such coverage in a manner consistent with the [regulation], [UM] coverage will be read into the . . . policy regardless of the intent of the parties or the fact that a premium has not been paid”). Plaintiff’s Rejection of UM/UIM Coverage Was Ineffective Because the Application and Its Included Rejec-tion Were Not Attached to the Policy {12} The rejection of UM/UIM cover-age can be made a part of the policy in a number of different ways. To the extent that Phoenix Indemnity relies on the application as affirmative evidence ofthe rejection, Romero presents closely analogous circumstances which inform our decision in this case. In Romero, even though the insured had signed an applica-tion indicating that she had rejected UM coverage, the Court held that the rejec-tion was invalid because the application was not attached to or made a part of the policy. 111 N.M. at 157, 803 P.2d at 246. Similarly, in this case, Phoenix Indem-nity’s failure to attach the application to the policy is fatal to its claim that the rejection of UM/UIM coverage was made a part of the policy of insurance. {13} In an attempt to distinguish Rome-ro, Phoenix Indemnity points out that, unlike the insured in Romero, who was never given a copy of the application con-taining the rejection, Plaintiff stipulated that she received a copy of her application and its rejection. For this reason, Phoenix Indemnity argues that Plaintiff was pro-vided adequate affirmative evidence ofher rejection. However, as emphasized in Romero, 111 N.M. at 156-57, 803 P.2d at 245-46, the purpose of the requirement that any rejection be a part of the policy is to clearly and unambiguously call to the insured’s attention that UM coverage has been waived and to provide the insured withaffirmativeevidenceoftheextentofher actual coverage. This ensures that the insured is well-informed about her deci-sion, with the opportunity after further reflectiontofullyreconsideranyrejectionof UM coverage. A copy of an application and rejection, without the accompanying policy, deprives the insured of such an


opportunity. Thus, the critical defect in Romero was that the application contain-ing the rejection was not attached to the policy to allow such an opportunity, not that the insured did not receive a copy of the application and its included rejection when initially applying for insurance. See Marckstadt, 2008-NMCA-138, ¶ 13 (stating that “Romero clearly stands for the proposition that some affirmative evidence of rejection of UM/UIM cov-erage must be attached to an automobile liability policy in order for the rejection to be valid”).A Provision in the Mandatory Finan-cial Responsibility Act (MFRA) Defin-ing the Contract Between the Insured and Insurer to Include the Application for Insurance Does Not Satisfy the Requirement That an Application Containing a Rejection of UM/UIM Coverage Must Be Attached to or Oth-erwise Made a Part of the Policy{14} Phoenix Indemnity argues that Romero is also distinguishable because of an amendment to the MFRA that was not in effect when Romero was decided. The 2003 amendment, NMSA 1978, Section 66-5-205.3(E)(4) (2003), provides that:

the policy, declarations page, the written application and a rider or an endorsement that doesnotconflictwiththeprovi-sions of the Mandatory Financial Responsibility Act constitute the entire contract between the parties.

Phoenix Indemnity argues that because the application and its included rejection are part of the entire contract between the parties, as provided by Section 66-5-205.3(E)(4), the rejection in the application is necessarily “made a part of the policy” for purposes of satisfying 13.12.3.9 NMAC. We disagree. {15} What constitutes the entire contract between the parties under the MFRA has no bearing on whether there has been a valid rejection of UM/UIM coverage under the UM Act. Put another way, Section 66-5-205.3(E) identifiesthe various documents that constitute the entire contract between the insured and insurer, but 13.12.3.9 NMAC provides the means by which the insured and in-surer must include the rejection of UM/UIM coverage within their contract of insurance. Because the superintendent of insurance is expressly authorized by the UMA to promulgate the rules and regulations governing the rejection of

UM/UIM coverage, see § 66-5-301(A), wedeclinetorelyonageneraldefinitionof the contract of insurance within the MFRA as the basis for depriving Plaintiff of UM/UIM coverage in this case. See Romero, 111 N.M. at 156, 803 P.2d at 245 (noting that statutory language that would create an “exception to uninsured coverage should be construed strictly to protect the insured”); see also Stinbrink v. Farmers Ins. Co., 111 N.M. 179, 182, 803 P.2d 664, 667 (1990) (providing that astatutedealingwithaspecificsubjectwill be given effect over a more general statute).{16} Moreover, as recognized in Romero, the administrative regulation requiring “that the rejection be made a part of the policy delivered to the insured quite apparently is to ensure that the insuredhasaffirmativeevidenceof theextent of coverage.” 111 N.M. at 156, 803 P.2d at 245. As such, we dismiss any sug-gestion that the Legislature intended to usethestatutorydefinitionofthecontractbetween the insured and insurer under the MFRA as a means for ensuring that the insuredhasaffirmativeevidencethatUMcoveragewas rejected.Theaffirmativeevidence of rejection comes from ensur-ing that the insured receives a clear indi-cation from the insurer upon receipt of the insurance policy that UM/UIM coverage was rejected—not from an obscure statu-tory reference that few insureds, if any, wouldknowabout.Astatutorydefinitionof the entire contract between the insured and insurer that includes the application does nothing to ensure that the insured is made aware of the lack of UM/UIM cov-erage upon receipt of the actual policy of insurance. See id. (recognizing that “after merely having an opportunity to review one’s policy at home, an individual may well reconsider his or her rejection of uninsured motorist coverage” and that “[p]rovidingaffirmativeevidenceoftherejection of the coverage comports with a policy that any rejection of the coverage be knowingly and intelligently made”). At the very least, if the Legislature had wanted to change the manner in which a rejection of UM/UIM coverage is effec-tuated,weareconfidenttheLegislaturewould have done so directly within the UMA itself. Cf. New Mexicans for Free Enter. v. City of Santa Fe, 2006-NMCA-007, ¶ 44, 138 N.M. 785, 126 P.3d 1149 (filed2005)(statingthat“[t]he[L]egisla-ture clearly knows how to preempt local lawmaking when it wants to do so”).

{17} Lastly, and importantly, as rec-ognized in State Farm Mut. Auto. Ins. Co. v. Progressive Speciality Ins. Co., 2001-NMCA-101, ¶¶ 8-9, 131 N.M. 304, 35 P.3d 309, the UMA and MFRA serve overlapping but different purposes. The MFRA is intended to protect the motoring public by requiring drivers to demonstrate a minimal amount of financialresponsibilityasaconditionfordriving an automobile in this state. Id. ¶ 8. Despite the mandatory nature of the MFRA, the UMA is intended to protect drivers from others who are uninsured or underinsured by dictating that an in-sured be given the opportunity to insure fully against loss by putting the insured in the same position as if the culpable motorist had adequate liability insurance. However, while a driver cannot opt out of the requirements of the MFRA, that same driver is not compelled to secure the coverage afforded by the UMA. As such, we decline to sanction the use of a statutory provision within the MFRA, for which a driver cannot reject insurance coverage, as a means for effectuating the rejection of coverage under the UMA. Cf. Padilla v. Dairyland Ins. Co., 109 N.M. 555, 558, 787 P.2d 835, 838 (1990) (hold-ing that any provision allowing for an exception to UM coverage is construed strictly to protect the insured, with the result that “cases involving uninsured motorist coverage must be given a quali-tatively different analysis by this court than cases which do not involve such coverage”). In short, had the Legislature intended to change the effect of regula-tion 13.12.3.9 NMAC, we believe that it would have implemented any changes within the UMA itself rather than within the statutorydefinitionofan insurancecontract for purposes of the MFRA. See Maes v. Audubon Indem. Ins. Group, 2007-NMSC-046, ¶ 11, 142 N.M. 235, 164 P.3d 934 (providing that a primary purpose of statutory construction is to ascertain and give effect to legislative intent, and for this reason, courts interpret statutes to facilitate their operation and the achievement of their goals). {18} Based on the foregoing discus-sion, we reverse the district court ruling that Plaintiff’s rejection of UM/UIM coverage was effective and conclude that UM/UIM coverage must be deemed part of Plaintiff’s liability policy. See Kaiser, 1996-NMSC-050, ¶ 6 (recognizing that UM/UIM coverage will be read into the insured’s automobile insurance policy in


the absence of a valid rejection); Romero, 111 N.M. at 156-57, 803 P.2d at 245-46 (providing that uninsured motorist cover-age will be deemed part of an insured’s liability policy when the rejection of such coverage does not satisfy statutory and regulatory requirements). On Remand, the District Court Must Decide in the First Instance Whether Plaintiff is Nevertheless Precluded From Recovering UIM Coverage{19} Phoenix Indemnity also argues that Plaintiff is nevertheless precluded from any further recovery because a stat-utory offset is required for the $25,000 she already received from the tortfeasor’s liability coverage. Further, Phoenix In-demnity argues that Plaintiff cannot stack coverage for the two vehicles insured under the UM/UIM coverage at issue in this case because Plaintiff intended to

reject UM/UIM coverage, paid no pre-mium for UM coverage, and therefore had no reasonable expectation of stacking UM/UIM coverage for the two vehicles insured under the policy. We decline, however, to address the availability of any offset or stacking because the district court did not rule on these arguments in thefirstinstance.Althoughthepotentialimpact of offset and stacking was raised in the summary judgment pleadings, it was not addressed at the summary judg-ment hearing, and the district court oral ruling addressed only the validity of the rejection. {20} The district court did not consider whether Plaintiff was precluded from further recovery because of a statutory offset or the unavailability of stacking. Although both parties’ briefs raise argu-ments on these two points that merit fur-

ther study, we decline to address whether any offsets or stacking apply because the districtcourtshouldbe thefirst toruleon these matters. See generally Garcia-Montoya v. State Treasurer’s Office, 2001-NMSC-003, ¶ 48, 130 N.M. 25, 16 P.3d 1084 (remanding for the district court to consider an issue in the firstinstance). CONCLUSION {21} We hold that Plaintiff’s rejection of UM/UIM coverage was ineffective. The district court order granting sum-mary judgment is therefore reversed, and the case is remanded for further proceed-ings consistent with this opinion. {22} IT IS SO ORDERED. MICHAEL E. VIGIL, Judge

WE CONCUR:CYNTHIA A. FRY, Chief JudgeLINDA M. VANZI, Judge


Certiorari Not Applied For



Topic Index:Civil Procedure: Summary Judgment

Government: State EngineerNatural Resources: Appropriation; and Water Law

IN THE MATTER OF THE APPLICATION By WATERFALL COMMUNITy WATER USERS ASSOCIATION FOR PERMIT TO APPROPRIATE PUBLIC SURFACE WATERS

FROM CULBERSON SPRING LOCATED IN NEW MEXICO WATERFALL COMMUNITy WATER USERS ASSOCIATION,

Applicant-Appellant,versus

NEW MEXICO STATE ENGINEER,Appellee,

andMEL ELKINS,

Protestant-Appellee.No. 28,049 (filed: July 28, 2009)

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTYJAMES W. COUNTS, District Judge

opinion

linda M. vanzi, Judge

{1} Appellant, Waterfall Community Water Users Association (Waterfall), submitted an application for 320 acre-feet per year of surface water from Culberson Spring1 within the Pecos River stream system. Appellant argued that it possessed a natural right, pursuant to NMSA 1978, Section 72-5-29 (1953), to those waters. TheState ofNewMexicoOffice of theState Engineer (State Engineer) dismissed the application. Waterfall appealed to the district court. The district court, upon its de

JEFFERSON R. RHODESBURROUGHS & RHODES

Alamogordo, New Mexicofor Appellant

DL SANDERSSpecial Assistant Attorney General

SUSANNE HOFFMAN-DOOLEySpecial Assistant Attorney General

NEW MEXICO OFFICE OF THE STATE ENGINEER

Santa Fe, New Mexicofor Appellee

DAvID MCNEILL, JR. HOLT BABINGTON MyNATT, P.C.

Las Cruces, New Mexicofor Appellee

novo review of the State Engineer’s deci-sion to dismiss, granted summary judgment against Waterfall. Waterfall appeals the districtcourt’sruling.Weaffirm.I. BACKGROUND{2} OnSeptember23,1999,Waterfallfiledan application for unappropriated water with the Appellee, State Engineer. In that application, Waterfall sought appropria-tion of 320 acre-feet per year of surface water from Culberson Spring for use in its community water system. Waterfall’s application was protested by Mel Elkins (Protestant), an individual named as Ap-pellee in this matter. Waterfall’s application wasfiledwiththeStateEngineer’shearing

unit,theentitywithintheOfficeoftheStateEngineer responsible for conducting the hearing on Waterfall’s application. {3} On May 31, 2001, prior to any eviden-tiary hearing, the Water Rights Division (WRD)oftheStateEngineerfiledamotionto dismiss with the hearing unit of the State Engineer. The WRD requested dismissal of Waterfall’s hearing and denial of its appli-cation. In support of its motion, the WRD argued that Culberson Spring is a tributary to Cox Canyon, which is in turn a tributary to Rio Peñasco, which is in turn a tributary to the Pecos River. The WRD asserted that the State Engineer had previously found, in an unrelated case, that there are no unappropriated waters available in the Pecos River stream system. Accordingly, the WRD asserted that Waterfall’s request for appropriations from Culberson Spring must be denied. To conclude otherwise would result in permitting the appropriation of water from a water system that is fully appropriated.{4} In response, Waterfall disputed the WRD’s claim that there was no unappro-priated water in the Pecos River stream system. Additionally, Waterfall claimed that it had a “natural right” pursuant to Section 72-5-29 to appropriate water from Culberson Spring. The exact contours of this “natural right” and how this right could be said to ameliorate the fact that Waterfall was requesting water from a stream system that was fully appropriated was not explained in Waterfall’s response. Indeed, Waterfall’s sole argument was that Section 72-5-29 “would appear to provide forthespecificsituationthatispresentinthis case, that is, diverting waters from the Culberson Spring for the domestic uses of the inhabitants of the land adjacent to Cul-berson Spring to distribute those waters as equitably as possible without interference with vested rights.”{5} On August 8, 2001, the State Engineer dismissed Waterfall’s hearing and denied its application. The State Engineer found, concurring with the WRD, that the waters of Culberson Spring are tributary to the Pecos River, the Pecos River and its tribu-taries are fully appropriated, and thus there are no unappropriated waters available in the Pecos River stream system. Based on these facts, the State Engineer concluded that granting Waterfall’s application would impair existing rights to water in the Pecos River stream system, would be detrimental

1 Throughout the record, the Spring has variously been referred to as “Culberson Spring” or “Culbertson Spring.” For consistency, we refer to it throughout this opinion as “Culberson Spring.”


to the public welfare, and would be contrary to the conservation of water within New Mexico.{6} Pursuant to NMSA 1978, Section 72-7-1(E) (1971), Waterfall appealed the State Engineer’s decision to the Twelfth Judicial District Court of New Mexico. On April 26, 2007,Protestantfiledamotionforsummaryjudgment with the district court. The State Engineer joined Protestant’s motion and stated its agreement with the arguments set forth therein.{7} In his motion, Protestant asserted that summary judgment was warranted because, as the State Engineer found, Waterfall can-not appropriate waters from Culberson Spring; all of that water is already fully appropriated. In addition, Protestant chal-lenged Waterfall’s assertion that it possessed a “natural right” to the waters of Culberson Spring pursuant to Section 72-5-29. This assertion, Protestant claimed, was premised on Waterfall’s erroneous interpretation of Section 72-5-29 and ignored the clear im-port of the statutory scheme within which Section 72-5-29 falls. Protestant noted that the scope of Section 72-5-29 is limited to the narrow purpose of conserving and utilizing torrential floodwater “so as toprevent erosion, waste, and damage caused bytorrentialfloods.”Further,thestatutoryprovision provides that any distribution of water cannot interfere with vested rights which Waterfall was seeking to do.{8} On May 7, 2007, Waterfall submitted its response to Protestant’s motion for summary judgment. At the outset, Waterfall agreed with the facts as set forth in Protestant’s motion and further conceded that the waters of the Pecos River stream system could be found to be fully appropriated. In spite of these concessions, however, Waterfall claimed that because “virtually all” the surface water it sought to appropriate from Culberson Spring would be returned to the Pecos River stream system, an issue of mate-rial fact existed with regard to whether there is unappropriated water in the Pecos River stream system.{9} Waterfall also claimed that Section 72-5-29 provides Waterfall a “natural right” to appropriateand“distributethebenefitofthewater in the stream system as equally as pos-sible without interfering with vested rights.” In order to address the concerns that Water-fall’s natural right argument was likely to elicit in light of its acknowledgment that the Pecos River stream system is fully appropri-ated, Waterfall maintained that application of its natural right under Section 72-5-29 to the waters of Culberson Spring would have

little or no adverse impact on the existing appropriations in the Pecos River stream system. Again, Waterfall maintained that the water it intended to divert from Culberson Spring for municipal and industrial purposes would be returned to the Pecos River stream system after use. As proof of this assertion, WaterfallsubmittedanaffidavitfromJamesMurrill, the operator of Waterfall’s domestic watersystem.Mr.Murrill’saffidavitstatedthat, based on his personal knowledge, most of the water Waterfall sought to appropriate would be “discharged back into the ground in the valley through individual liquid waste disposal systems.”{10} The district court granted the mo-tion for summary judgment on August 31, 2007, dismissing Waterfall’s appeal. The district court found that there is no water available for appropriation in the Pecos River stream system, that Culber-son Spring is a tributary and part of this stream system, and that the provisions of Section 72-5-29 were inapplicable to Waterfall’s claim because the applica-tion was not made under that statute. Waterfallfiledatimelynoticeofappealof the district court’s decision with this Court. The sole issue on appeal is whether Section 72-5-29 allows Waterfall to ap-propriate waters from Culberson Springs notwithstanding the fact that there is no unappropriated water in the Pecos River stream system.II. DISCUSSIONA. Standard of Review{11} “An appeal from the grant of a motion for summary judgment presents a question of law and is reviewed de novo.” Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971(filed2006).“Summaryjudgmentisappropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Id. (internal quotation marks and citation omitted). “Where reasonable minds will not differ as to an issue of material fact, the court may properly grant summary judgment.” Id. “All reasonable inferences are construed in favor of the non-moving party.” Id. (internal quotation marks and citation omitted).B. Culberson Spring is Fully Appropriated{12} Wefirstaddress theStateEngi-neer’s assertion that this matter is easily resolved given the undisputed fact that Waterfall has applied for water from Culberson Spring, which is part of a water system that is fully appropriated.

The State Engineer correctly observes that NMSA 1978, Section 72-5-7 (1985) provides that “[i]f, in the opinion of the state engineer, there is no unappropri-ated water available, he shall reject [an] application [for water appropriation].” We agree with the State Engineer that Waterfall’s application seems readily subject to dismissal given the fact that the parties recognize that the water source they seek an appropriation from is fully appropriated.{13} Notwithstanding that Waterfall hasagreedthattherecouldbeafindingof no unappropriated water in the Pecos River stream system, it nevertheless attempts to circumvent this statutory roadblock to its application by asserting a “natural right” to the water in Culberson Spring under Section 72-5-29.{14} Waterfall agrees that there could beafindingofnounappropriatedwaterin the Pecos River stream system. It also concedes that it may exercise its alleged “natural right” to thewaters specifiedin its application under Section 72-5-29 only if doing so would not interfere with preexisting vested water rights. Waterfall responds to this obstacle by alleging that the water it seeks to appropriate from Culberson Spring would be returned to the Pecos River stream system and, there-fore, there would be no interference with any vested rights. It maintains that the district court erred when it granted sum-mary judgment as this precluded inquiry into “whether [Waterfall’s] natural right could be exercised without interfering with [other] vested water rights.”{15} In attempting to elucidate the argument made by Waterfall, the State Engineer describes Waterfall’s request for unappropriated water as seeking a “super status water use.” We agree that Waterfall appears to be asserting a superseding right to a reasonable share of water from Culberson Spring, irre-spective of whether Culberson Spring is fully appropriated. This conclusion—that Waterfall is asserting a superseding right to water—is the only way to make sense of Waterfall’s assertion that “as persons specificallyidentifiedin[Section72-5-29,Waterfall possesses] a natural right . . . to utilize a reasonable share of the waters of the Pecos River [s]tream system and [Waterfall is] not precluded from exer-cising that natural right by a broad . . . administrative determination that there are no unappropriated waters in the Pecos River Basin.”


C. Interpretation of Section 72-5-29{16} We thus address Waterfall’s argu-ment that the natural right created by Sec-tion 72-5-29 grants it such a superseding right “to utilize a reasonable share of the waters of the Pecos River [s]tream system” despite the fact that the Pecos River stream system is fully appropriated. This argument raises two questions: (1) whether Section 72-5-29 provides Waterfall a superseding naturalrighttothewatersspecifiedinitsapplication, and (2) whether the district court improperly denied Waterfall an op-portunity to exercise this right by granting summary judgment. Interpretation of a statute is a question of law which an ap-pellate court reviews de novo. See Morgan Keegan Mortgage Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066(filed1997).{17} The starting point in our efforts to resolve the questions raised by Waterfall’s argument is the language of the statute in question. In interpreting statutes, we seek to give effect to the Legislature’s intent, and in determining intent we look to the language used and consider the statute’s history and background. Key v. Chrysler Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996). Section 72-5-29 provides:

To the end that the waters of the several stream systems of the state may be conserved and utilized so as to prevent erosion, waste and damage caused by tor-rentialfloods,andinorderthatthebenefitsoftheuseofsuchwatersmay be distributed among the inhabitants and landowners of the country along said streams as eq-uitably as possible without inter-fering with vested rights, the natu-ral right of the people living in the upper valleys of the several stream systems to impound and utilize a reasonable share of the waters which are precipitated upon and have their source in such valleys and superadjacent mountains, is hereby recognized, the exercise of such right, however, to be subject to the provisions of this article.

Wefirstobservethatthisstatutewaspro-mulgated in 1909, and the language of the present statute remains virtually unchanged since its promulgation. This fact highlights the novelty of Waterfall’s argument—we are aware of no other case since 1909 in which an applicant asserted a natural right to fully appropriated waters under Section

72-5-29, and Waterfall has directed us to none.{18} The parties offer competing interpreta-tions of Section 72-5-29. Waterfall asserts that Section 72-5-29 “affords persons such as the residents of Waterfall [a natural right] to impound and utilize a reasonable share of surface water” and has submitted four arguments in support of this conclusion. We note at the outset of our discussion of these argumentsthatwefindthemunpersuasive.{19} First, Waterfall contends that the re-peated use of the word “and” in Section 72-5-29 somehow supports its interpreta-tion of the statute. Waterfall has given us no support for this contention, outside of a general discussion on the use of the conjunc-tion, and we simply do not see why or how this is the case. Second, Waterfall focuses on the use of the word “natural” in Sec-tion 72-5-29 and argues that the presence of this word denotes that Section 72-5-29 establishes a right originating not from law butfromsomeothersource.Again,wefindno support in the statutory language for Wa-terfall’s argument, and it has not provided any reasoned basis to persuade us of the merits of this contention. Third, Waterfall asserts that, when enacted, Section 72-5-29 was inconsistent with the existing water law statutes and thus must have created a new right that Waterfall is entitled to exercise. This argument ignores the fact that the plain language of Section 72-5-29 indicates that it is, and always was, subject to the provisions of the preexisting sections of NMSA 1978, Sections 72-5-1 to -39 (1907, as amended through 2007). Finally, Waterfall argues that were we to decline to adopt its interpretation of Section 72-5-29, we would be stripping the statute of any meaning. This argument also fails as we are persuaded that the State Engineer’s interpretation of Section 72-5-29 properly explains the meaning of Section 72-5-29 and its interrelationship with the other statutes within Sections 72-5-1 to -39. First, we have no hesitation in concluding that Section 72-5-29 implicates fundamental water law policies.{20} The State Engineer suggests that Sec-tion 72-5-29 should be interpreted in the following manner:

The intended effect of Section 72-5-29 appears to be to smooth out the water supply curve by allow-ing water to be impounded during periods of excess supply, which otherwise could not be placed to beneficial use.Doing so [] pro-motes watershed health and pre-vents erosion and property damage

by allowing impoundment and use ofexcessiveortorrentialflowsun-dercertainspecificcircumstances.[However, t]he State Engineer may nevertheless grant such an applica-tion only if there is unappropriated water to appropriate . . . and such an appropriation would not deprive prior appropriators of their water. . . . Thus, the Legislature clearly did not remove impoundment and utilizationoffloodwatersfromthegeneral scheme for surface water appropriation, to create some sort of super status water use.

Given the complex nature of the statutory regime governing water appropriation in this state, relying on the expertise of the State Engineer to decipher how Section 72-5-29—a statute that has garnered little attention in one hundred years—fits intothat scheme is prudent. Second, the State Engineer’s interpretation of Section 72-5-29 comports with the plain language of the statute. See In re Adjustments to Franchise Fees Required by Elec. Util. Indus. Restruc-turing Act of 1999, 2000-NMSC-035, ¶ 9, 129 N.M. 787, 14 P.3d 525 (“In construing a particular statute, a reviewing court’s central concern is to determine and give effect to the intent of the [L]egislature. In order to determine legislative intent, this Court looks primarily to the plain language of the statute, giving ordinary meaning to the words used.” (internal quotation marks and citation omitted)).{21} Section 72-5-29 plainly contemplates the potential utilization of water “so as to prevent erosion, waste and damage caused by torrential floods.”The statute furtherspecifiesthatanyappropriationofthewa-ter contemplated by the provision should not “interfere[] with vested rights” and is “subject to the provisions of [Section 72-5-1 to -39].” Section 72-5-29. Accordingly, the State Engineer’s contentions that Section 72-5-29 concerns appropriation of floodwatersundercertainspecificcircumstances,thatanapplicationtoappropriatethosefloodwaters is required, that an appropriation of thosefloodwaters is appropriate onlyif that appropriation would not interfere with prior appropriations, and that Section 72-5-29 did not create a super status water use that supersedes the normal appropria-tion process is consistent not only with the express language of the statute, but also with the underlying rationale of conservation and damage control.{22} Having arrived at the foregoing con-clusions, we turn to the questions posed


by Waterfall’s argument that it possesses a superseding “natural right” to the waters of Culberson Spring under Section 72-5-29 and that it was erroneously denied a hearing to determine whether it was entitled to exercise that right. In considering whether Section 72-5-29 provides Waterfall a superseding natural right to waters from Culberson Spring, we conclude that it does not. As described above, Section 72-5-29 concerns floodwatersandtheappropriationoffloodwatersundercertainspecificcircumstances.Waterfall is not asserting a right tofloodwaters under Section 72-5-29. It is asserting a right to water from Culberson Spring. This incongruity disposes of Waterfall’s claim that it isentitled to thewaterspecified inits application under Section 72-5-29. In determining whether the district court er-roneously denied Waterfall an opportunity to a hearing on whether it was potentially entitled to an appropriation under Section 72-5-29, we conclude that it did not. The district court properly held that Waterfall was not entitled to an appropriation from Culberson Spring, a part of a fully appropri-ated water system. Waterfall’s reliance on Section 72-5-29 to challenge this determina-tion is unavailing.D. Alternative Grounds for Summary

Judgment{23} Moreover, even if we were to accept Waterfall’s interpretation of Section 72-

5-29, the district court was nevertheless correct in granting summary judgment on al-ternative grounds. Waterfall’s stated intent is to utilize a “reasonable share” of water from Culberson Spring “for use in the community water system serving the Waterfall Subdivi-sion.” According to Waterfall, water use in Waterfall’s community water system means “household and domestic” use. Waterfall contends that the 320 acre-feet per year that it requested for household and domestic use would result only in “minimal consumptive use.” Further, Waterfall argues that the used waters that are diverted from Culberson Spring would somehow then be “pass[ed] on downstream to the other vested right holders.” The only basis for these asser-tions are James Murrill’s unsupported and conclusory statements that “the source of the water for the [Culberson] Spring is precipi-tated on the slopes of the valley where the Spring and the Waterfall subdivisions are located” and that “the water is discharged back into the ground in the valley through individual liquid waste disposal systems.” Mr. Murrill’s statements, based only “upon [his] personal knowledge,” are neither competent nor admissible and are therefore insufficient to defeat summary judgment.Pedigo v. Valley Mobile Homes, Inc., 97 N.M. 795, 798, 643 P.2d 1247, 1250 (Ct. App.1982) (noting that “factually unsup-portedopiniontestimony”is“notsufficient

to defeat a motion for summary judgment”). The State Engineer found, and the district court agreed, that Waterfall’s exercise of its alleged natural right would interfere with preexisting vested water rights. We agree, and Waterfall has provided no evidence to the contrary. Furthermore, this conclusion is a proper basis upon which to have granted summary judgment dismissing Waterfall’s application. See State ex rel. State Eng’r v. Comm’r of Pub. Lands, 2009-NMCA-004, ¶ 15,145N.M.433,200P.3d86(filed2008)(“Theappropriationofwaterforbeneficialuse establishes the priority date of a water right in relation to other water rights, and the full right of an earlier appropriator will be protected, to the extent of that appropriator’s use, against a later appropriator.”).III. CONCLUSION{24} Accordingly, we hold that summary judgment was proper as a matter of law and that Waterfall was not entitled to the appropriationspecifiedinitsapplication,norwas it entitled to those waters under Section 72-5-29.Weaffirmthedistrictcourt’srul-ing.{25} IT IS SO ORDERED. LINDA M. VANZI, Judge

WE CONCUR:JAMES J. WECHSLER, JudgeTIMOTHY L. GARCIA, Judge


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offiCe spaCe

Across From Roundhouse4 private offices and large conference room; Cat5 wiring, outstanding location on Don Gaspar Avenue at Paseo de Peralta. Call 505 986 2800, email [email protected] or go to www.santafeoffices.com/dongaspar for further information.

Penthouse Office2,185 Square Foot Penthouse Office in historic Lensic Theatre Building. Private space lends it-self to legal, financial or real estate use. Features secure entry from elevator, alarm system, A/V system, refrigerated air, private kitchen and two washrooms. Space newly painted, and flooring allowance available. Four designated parking spaces in adjacent lot are included. Three years plus lease. Please view floor plan under Lensic Block/Lensic Theatre Building/View 3rd Floor at: www.greerenterprises.info . Contact Michael Maremont at Phase One Realty, 505 986-2947 or [email protected]

Attorney Office SpacePrime Uptown LocationPrestigious Uptown location, high visibility, convenient access to I-40, Bank of America, companion restaurants, shopping, two-story atrium, extensive landscaping, ample park-ing, full-service lease. Single attorney office space (office plus secretary-paralegal and small reception area if needed) available within well-improved and appointed 2695 square foot office. Includes shared reception, secretarial areas, conference room, coffee bar, and lounge with three other small attorney firms. Rent of $1175.00 includes reception coverage. One (1) year lease required. Call Ron Nelson 883-9662 - Uptown Square.

serviCes

Go Have A Beer – We’ll Handle The Research & Writing Virtual Litigation Support, LLC provides the highest quality research and writing at irresistibly affordable rates (rates begin at $75/hour). Built-in quality control, all U.S. attorneys, no project too large or too small. VirtualLitigationSupport.com or call today: (877) 727-7176.

Contract ParalegalContract paralegal with 20+ years experience in civil litigation available for trial preparation and all paralegal tasks. Excellent references. (505) 899-2918

Complex Litigation ParalegalDINES & GROSS PC is seeking a highly motivated complex litigation paralegal with a minimum of five years experience for a diverse, busy civil litigation practice. Applicant must be a team player with excellent organizational skills. Please forward your resume to Stephanie D. Reinhard, 6301 Indian School Road NE, Suite 900, Albuquerque, NM 87110. Fax: 889-4049; e-mail: [email protected]. No phone calls please.

Need A Judgment Collected?Leading NM collection attorney will co-counsel for 15% contingency fee on judgments over $10K. Call Duane at Zamzok Law Office: (505) COLLECT.

Assistant Attorney GeneralThe Border Violence Division of the Attorney General’s Office (EEO employer) has an open-ing for an “exempt” (not classified) attorney term position in the Santa Fe office. Duties will include working in jurisdictions throughout the State prosecuting crimes relating to Human Trafficking, International Extraditions and Foreign Prosecutions with Mexico. Travel is required throughout the State of New Mexico and the ability to speak and write fluently in Spanish is preferred. The ability to cultivate contacts with local, State, Federal and Mexican governmental entities is preferred. NM bar admission is required and significant felony jury trial experience is preferred. Resume, writing sample and minimum of three profes-sional references must be received by 5:00 p.m., October 16, 2009 at the Attorney General’s Office, Attn.: Dennis Martinez, P.O. Drawer 1508, Santa Fe, NM 87504-1508.

Litigation Legal AssistantOur busy personal injury firm is seeking a motivated and driven full time Litigation Legal Assistant. In addition to a minimum of 1 year of litigation experience, personal injury, medical or insurance experience is required. Qualified candidates will have the ability to efficiently multitask while remaining compassionate, professional and courteous. Those applying should take pride in their work, should enjoy working in a fast paced environment, should be extremely organized and should have a passion for client service. Office hours are Monday - Fri-day, 8 am - 5 pm with flex time available each Friday. Typical duties will include, but will not be limited to the following: Frequent verbal and written communication with clients, medical providers, attorneys and insurance companies; Thorough and accurate documentation of client files; Frequent review of medical records and insurance documents; Completion of intake interviews with potential clients; Monitoring progression of each case to ensure efficiency; Participating in ongoing internal training programs; Meeting multiple simultaneous dead-lines each day. Benefits are available including health, dental, life, 401k, paid holidays and paid time off. Please submit salary requirements and three professional references along with your resume to [email protected].

Writing, Research, AppealsExperience: federa l appellate clerk and Modrall Sperling attorney. 505-550-8573, [email protected].

Elder Law AttorneySenior Citizens’ Law Office is seeking a full-time Elder Law attorney who will provide direct representation of seniors on elder law issues, including health, consumer, benefits, housing, foreclosure, long-term care and ex-ploitation. Ability to speak Spanish helpful. Member of New Mexico bar. Salary DOE. Submit cover letter, resume, and writing sample (no more than 5 pages) and two professional references by email to [email protected]

Solos and Small Firms:If you want another attorney to help with a large case, I can provide expertise on medi-cal and environmental issues and can help prepare your case for trial. Please call (505) 293-1187.

Offices One Block From CourthousesWalk to the courthouses just around the corner! Historic Anson Flats office building for lease. Aprox 1350 sq ft office space and 750 sq ft storage. Furnished reception room. Kitchen and bathroom on each floor. Full phone system and fully networked. Secure parking on site. $2,500 per month, utilities included. [email protected].




http://www.santafeoffices.com/dongaspar

http://www.greerenterprises.info





Know the Law Before the Law Knows You: For teens and Young Adults, a new project of the State Bar of New Mexico, will provide New Mexico high school students with basic information on a variety of legal subjects not covered in the usual school curriculum. We believe this program will greatly benefit their young adult lives.

Attorney volunteers are needed to provide one-hour presentations to high school students. Teachers all over New Mexico have been sent an introductory DVD and business cards directing students to the Know the Law Web site (www.nmbar.org/knowthelaw.html) where students can find answers to frequently asked questions They have also been sent sign-up forms for requesting an attorney to come to their schools to give live presentations. The only part missing is your time and knowledge. Please sign up!

Below are the subjects on which the sessions will be based. Select the subjects that you would be able to present. Your volunteered time will be counted as part of your pro bono aspirational goal, and we will keep track of your hours.

Attorney Registration

❍ ADulThooD & EMANciPATioN ❍ FAMilY MATTErS❍ Alcohol & DrugS ❍ JurY DuTY❍ criMiNAl MATTErS ❍ MoNEY MATTErS❍ DEAliNg WiTh DoMESTic ViolENcE ❍ SEx AND ThE lAW❍ DriNkiNg ❍ SurFiNg ThE iNTErNET❍ DriViNg ❍ VoTiNg❍ EMPloYMENT

know the lawbefore the lawknows you

for teens & young adults

NAME: _____________________________________________________ PhoNE: _________________________________i have some questions. call me at: _______________________________________________________________________i have an attorney associate/ friend/ acquaintance that might be interested in participating.call_________________________________________________________________________________________________ (Name) (Telephone Number)❏ You may use my name as a reference ❏ Do NoT use my name as a referencelist your current area(s) of law: ___________________________________________________________________________

Fax sign-up form to the attention of Jorge at 505.797.6074

complete and return the form to:State Bar of New Mexico, Public & legal Services Department

Attention Jorge JimenezPo Box 92860, Albuquerque, NM 87199 or fax to (505) 797-6074

if you have any questions, call Jorge at (505) 797-6067 or email [email protected]

Brought to you by the

Public & legal ServiceS DePartment

Volunteer Attorneys needed to speak

to groups of young adults statewide

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

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


October 5, 2009 • Volume 48, No. 40 · 2017-05-31 · 6 Ba r Bu l l e t i n - October 5, 2009 -...

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Transcript of October 5, 2009 • Volume 48, No. 40 · 2017-05-31 · 6 Ba r Bu l l e t i n - October 5, 2009 -...