March 27, 2013 • Volume 52, No. 13 - nmbar.org

Transcription

March 27, 2013 • Volume 52, No. 13
Inside This Issue
Table of Contents.................................................3
Board of Bar Commissioners
Appointment to ABA House of Delegates.......4
N.M. Supreme Court Announces New
Rule-Making Process, by Joey Moya..................6
State Bar 2013 Annual Awards:
Call for Nominations.......................................6
Mary Torres Elected ABA Secretary,
by Greg L. Gambill..........................................9
New Mexico Courts E-Filing Update...................9
Clerk’s Certificates..............................................13
Rules/Orders
Notice of Publication for Comment:
Proposed Amendments to Supreme Court
Rules of Practice and Procedure.....................17
From the New Mexico Supreme Court
2013-NMSC-004, No. 33,135:
Horne v. Los Alamos National
Security, L.L.C...............................................21
2013-NMSC-005, No. 33,083:
Martinez v. N.M. Department
of Transportation............................................27
From the New Mexico Court of Appeals
2013-NMCA-027, No. 31,577:
State v. Webb.................................................33
To Oz, by Sarah Hartshorne (see page 3)
Weems Art Gallery, Albuquerque
Special Insert
CLE At-a-Glance
Bar Bulletin - March 27, 2013 - Volume 52, No. 13 1
SILENT AUC TION
The New Mexico State Bar Foundation will hold
a silent auction to raise money for civil legal
services as part of the State Bar's 2013 Annual
Meeting in Santa Fe. The Bar Foundation helps
families and individuals get the civil legal service
help they need. Funds raised are used to make
justice work for those who need it but cannot
afford it — to give everyone a fighting chance.
The auction will take place Thursday, June
27 and Friday, June 28, 2013 at the Santa Fe
Convention Center. Please help by donating
an auction item for the event. Anything would
be greatly appreciated.
Silent auction contributors will be promoted throughout the three-day Annual Meeting,
in the event program, and in the weekly Bar Bulletin, a publication mailed to more than
7,000 in the New Mexico legal community. We expect more than 400 lawyers and their
guests to attend the event. Your donation is also tax-deductible.
If you have an item you are willing to donate, please contact:
Michaela Chavez
505-977-5653
[email protected] • [email protected]
Joe Conte
505-797-6099 • [email protected]
2 Bar Bulletin - March 27, 2013 - Volume 52, No. 13
Table of Contents
Officers, Board of Bar Commissioners
Andrew J. Cloutier, President
Erika Anderson, President-Elect
Martha Chicoski, Vice President
J. Brent Moore, Secretary-Treasurer
Hans Voss, Immediate Past President
Board of Editors
Jennifer C. Esquibel, Chair
Ian Bezpalko
Cynthia A. Christ
Kristin J. Dalton
Jocelyn C. Drennan
George C. Kraehe
Maureen S. Moore
Tiffany L. Sanchez
Michael J. Thomas
Joseph Patrick Turk
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
Editor Dorma Seago
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2013, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: [email protected]. • www.nmbar.org
March 27, 2013, Vol. 52, No. 13
Notices .................................................................................................................................................................4
N.M. Supreme Court Announces New Rule-Making Process, by Joey Moya.....................................6
State Bar 2013 Annual Awards: Call for Nominations..........................................................................6
Legal Education Calendar..............................................................................................................................7
Mary Torres Elected ABA Secretary, by Greg L. Gambill..........................................................................9
New Mexico Courts E-Filing Update...........................................................................................................9
Writs of Certiorari .......................................................................................................................................... 10
List of Court of Appeals’ Opinions............................................................................................................ 12
Clerk’s Certificates.......................................................................................................................................... 13
Recent Rule-Making Activity...................................................................................................................... 15
Rules/Orders
Notice of Publication for Comment: Proposed Amendments
to Supreme Court Rules of Practice and Procedure................................................................. 17
Opinions
2013-NMSC-004, No. 33,135: Horne v. Los Alamos National Security, L.L.C.................... 21
2013-NMSC-005, No. 33,083: Martinez v. N.M. Department of Transportation.............. 27
2013-NMCA-027, No. 31,577: State v. Webb............................................................................... 33
Advertising ...................................................................................................................................................... 37
State Bar Workshops
Meetings
March
March
28
Natural Resources, Energy, and
Environmental Law Section BOD,
Noon, via teleconference
27
Consumer/Debt Bankruptcy Workshop
6 p.m., State Bar Center
April
29
ADR Committee,
Noon, Bernalillo County District Court
3
Divorce Options Workshop
April
1
Attorney Support Group,
5:30 p.m., First United Methodist Church
11
Lawyerly Referral for the Elderly Workshop
10–11:15 a.m., Presentation
1–3:30 p.m., Clinics
Alcalde Senior Center, Alcalde
3
Bankruptcy Law Section BOD,
Noon, U.S. Bankruptcy Court
3
Employment and Labor Law Section BOD,
Noon, State Bar Center
24
4
Real Property, Trust and Estate Section BOD,
11 a.m., via teleconference
25
5:30 p.m., Law Office of Kenneth Egan,
Las Cruces
Cover Artist: The focus of Sarah Hartshorne’s work has been on capturing the unique in the ordinary, the beauty in the
mundane. Like the impressionists, she paints in oil from everyday life and the world around her, sharing what often goes
unnoticed and exploring the play of light and shadow.
Notices
Professionalism Tip
Court News
N.M. Supreme Court
With respect to the courts and other tribunals:
New Mexico Commission
on Access to Justice
The next meeting of the Commission
on Access to Justice is from noon–4 p.m.,
April 5, at the State Bar Center. Interested
parties from the private bar and the public
are welcome to attend. Further information
about the commission is available on the
State Bar’s website, www.nmbar.org.
Second Judicial District Court
Volunteer Attorney Program
Free Foreclosure Clinic
April 3, 10 a.m.–1 p.m.
Clinics are held the first Wednesday of
each month, Third Floor Conference
Room, 2nd Judicial District Court, 400
Lomas Blvd. NW, Albuquerque. Clients
should bring all related paperwork. Direct
questions to Erin Olson, 505-768-6114.
The clinic is sponsored by the 2nd Judicial
District Pro Bono Committee and the Volunteer Attorney Program.
Fifth Judicial District Court
Judicial Appointment
Gov. Susana Martinez has appointed
Judge James M. Hudson to fill the vacancy
in Division VI. Effective April 1, Judge
Hudson will be assigned all cases previously
assigned to Judge Ralph D. Shamas, Division VI. Pursuant to Supreme Court Rule
1-088.1, parties who have not yet exercised
a peremptory excusal will have 10 days from
April 10 to excuse Judge Hudson.
State Bar News
Attorney Support Group
•April 1, 5:30 p.m.
Afternoon groups meet on the first
Monday of the month.
Before dates for hearings or trials are set, or immediately after dates have been
set, I will verify the availability of participants and witnesses, and I will also
notify the court (or other tribunal) and opposing counsel of any problems.
•April 15, 7:30 a.m.
Morning groups meet on the third
Monday of the month.
Both groups meet at the First United
Methodist Church at Fourth and Lead
SW, Albuquerque. For more information, contact Bill Stratvert, 505-2426845.
Support Group for Legal Professionals
April 11, 5:30 p.m.
The group meets on the second Thursday of the month at the Unitarian Universalist Church, 107 West Barcelona
Rd., Santa Fe. For more information,
call Diego Zamora, 505-629-7343.
Board of Bar Commissioners
Appointment to ABA House
of Delegates
The Board of Bar Commissioners will
make one appointment to the American
Bar Association House of Delegates for
a two-year term, which will expire at the
conclusion of the 2014 ABA Annual Meeting. The delegate must be willing to attend
meetings or otherwise complete his/her
term and responsibilities without reimbursement or compensation from the State Bar;
however, the ABA provides reimbursement
for expenses to attend the ABA mid-year
meetings. Applicants must be current ABA
members in good standing. Send a letter
of interest and brief résumé by April 1 to
Executive Director Joe Conte, State Bar of
New Mexico, PO Box 92860, Albuquerque,
NM 87199-2860; or fax to 505-828-3765.
Employment and Labor
Law Section
Board Meetings Open
to Section Members
The Employment and Labor Law Section board of directors welcomes section
members to attend its meetings on the
first Wednesday of each month. The next
meeting will be held at noon, April 3, at
the State Bar Center. Lunch is provided to
those who R.S.V.P. to membership@nmbar.
org. Contact Chair Justin Poore, jepoore@
sandia.gov or 505-284-6336.
Paralegal Division
Luncheon CLE Series
The Paralegal Division invites members of
the legal community to bring a lunch and attend Public Records Requests vs. Formal Discovery Tools in Litigation (1.0 general CLE credit)
presented by Josh Allison. The program will be
held from noon–1 p.m., April 10, at the State
Bar Center (registration fee for attorneys–$16,
members of the Paralegal Division–$10,
non-members–$15). Registration begins at
the door at 11:45 a.m. For more information,
contact Cheryl Passalaqua, 505-247-0411, or
Evonne Sanchez, 505-222-9352. Webcast to
three locations:
•Santa Fe: Montgomery & Andrews,
325 Paseo de Peralta, Santa Fe. Contact
Donna Ormerod, 505-986-2520.
•Roswell: Hinkle, Hensley, Shanor &
Martin LLP, 400 N. Pennsylvania, Ste.
700. Contact Dora Paz, 575-622-6510.
•Farmington: Titus & Murphy, 2021 E.
20th Street. Contact Heather Parmley,
505-326-6503.
Judicial Records Retention and Disposition Schedules
Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and
courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are
advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit
information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and
defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not
claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court.
Court Exhibits/Tapes
5th Judicial District Court
Eddy County, 575-885-4740
Domestic Relations
For Years
May Be Retrieved Through
1972-1997
April 10
www.nmbar.org
Young Lawyers Division
2013 Summer Fellowships
The Young Lawyers Division is currently accepting applications for its 2013
Summer Fellowships. The YLD is offering
two fellowships for the summer of 2013 to
law students who are interested in working
in public interest law or the government
sector. The fellowship awards are intended
to provide the opportunity for law students
to work for public interest entities or in
the government sector in an unpaid position. Applications must be postmarked by
March 29. Direct questions to Samantha M.
Hults, [email protected]. Visit
http://www.nmbar.org/AboutSBNM/YLD/
YLDactivities.html for details.
ABA YLD Scholarship
The 2013-14 American Bar Association Young Lawyers Division Scholarship
Program is designed to encourage the
participation of minority, solo/small firm,
government, private sector, and military
service attorneys in the ABA YLD. Priority
will be given to those applicants who express
a desire to become actively involved with the
ABA YLD and require financial assistance.
For complete information, visit http://bit.
ly/ZxMgeo. The application deadline is
April 1.
Board Vacancy
A vacancy exists on the YLD Board
in Region 4 (3rd, 6th, and 12th Judicial
districts and Sierra County). Any YLD
members interested in the position should
send a letter of interest and résumé to Chair
Keya Koul, [email protected] by April 19.
Member Attitudes Survey
As the YLD board reached the end of
the 2012 program year, the directors asked,
“Are we doing a good job?” “How would we
know one way or the other?” To that end,
a recent online survey has given the board
a road map for 2013 programming aimed
at creating value for division members. To
view the results of the survey, visit http://
www.nmbar.org/AboutSBNM/YLD/YLD.
html.
UNM
The John Field Simms Sr.
Memorial Lectureship in Law
United States District Judge James O.
Browning will present A Border Trial Judge
Looks at Immigration–Heeding the Call to Do
Principled Justice to the Alien Without Get-
ting Bogged Down in Partisan Politics: Why
the United States Immigration Laws are Not
Broken (But Could Use Some Repairs) (1.0
general CLE credit) at 4:30 p.m., April 3,
at the UNM School of Law. Parking is free
in the L parking lot starting at 3:30 p.m.
A reception will follow. R.S.V.P. to rawls@
law.unm.edu or 505-277-8184. For more
information, visit http://lawschool.unm.
edu/alumni/events/2013/simms.php.
Law Library Hours
Through May 11
Building & Circulation
Monday–Thursday 8 a.m.–10 p.m.
Friday
8 a.m.–6 p.m.
Saturday
8 a.m.–5 p.m.
Sunday
noon–8 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–SundayClosed
Other Bars
Albuquerque Bar Association
Luncheon and CLE
The Albuquerque Bar Association’s
Membership Luncheon will be held at
11:45 a.m., April 9, at the Embassy Suites,
1000 Woodward Place NE, Albuquerque.
Dick Minzner will provide a legislative
update (1.0 general CLE credit). Plan to
arrive early for lunch. The presentation will
follow from 12:30–1:30 p.m. Lunch only:
$30 members/$40 non-members, plus $5
walk-up fee; lunch/CLE: $60 members/$80
non-members, plus $5 walk-up fee; CLE
only: $30 members/$40 non-members.
Register for lunch by noon, April 5. To
register:
1.log on to www.abqbar.org; or
2.email [email protected]; or
3.call 505-842-1151 or
505-243-2615; or
4.mail to PO Box 40,
Albuquerque, NM 87103.
Albuquerque Lawyers Club
Monthly Luncheon
New Mexico’s oldest bar association
invites the legal community to its monthly
luncheon and speaker series to be held at
noon, April 3, at Season’s Rotisserie and
Grill, Albuquerque. Enjoy salmon, steak,
and a talk with Attorney General Gary King.
The cost is $25, and everyone is welcome.
Contact Megan Duffy, law.mduffy@rt66.
com or 505-323-0515.
FedEx® Shipping
For reliable and cost-effective shipping, count
on FedEx to deliver. SBNM members save
up to 26 percent on select FedEx Shipping
services. There are no costs and no minimum
shipping requirements to take advantage of
this great member benefit. For more information or to enroll in this program,
visit www.1800members.com/sbnm
or call 1-800-MEMBERS
(1-800-636-2377),
8 a.m.–6 p.m. EST, M–F.
American Bar Association
Spring Conference
The ABA Section of Administrative Law
and Regulatory Practice will hold its 2013
Spring Conference April 12–14 at the Inn
and Spa at Loretto in Santa Fe. The program
faculty includes both state and national
speakers, with CLE programs on Alcohol
Regulations and Airlines and The Future of
NAFTA. For additional information and
a registration form, contact Anne Kiefer,
[email protected] or 202-6621690.
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org/JLAP/JLAP.html
N.M. Supreme Court Announces New Rule-Making Process
By Joey Moya, Clerk of the Court and Chief Counsel
I
n an effort to make it easier for the bench and bar to participate in
and stay apprised of the rule-making process, the New Mexico Supreme Court recently adopted amendments to Rule 23-106 NMRA,
effective July 1, which essentially limit rule-making activity to twice
per year. Once each March, the Court will publish for comment
proposed rule amendments that are under consideration for that
year and once every fall, the Court will approve rule amendments
which will then go into effect Dec. 31 of that year. The Court seeks
to accomplish three main goals with the new process:
1.increase public awareness and comment concerning proposed
rule amendments by publishing proposals for comment
during only one month;
2.facilitate participation in the Court’s rule-making committees
by providing a more predictable and limited timetable for
developing and submitting rule proposals; and
3.enhance the stability of the rules for the bench and bar by
only approving amendments at the end of every year.
To further reduce the frequency of rule amendments, the Court
adopted a biennial rule-making cycle so that most rule sets will be
amended only once every two years. Under the biennial cycle, some
sets of rules will be amended in even-numbered years, and other
sets of rules will be amended in odd-numbered years. For example,
amendments to procedural rules for civil cases will be published for
comment and approved in even-numbered years, while procedural
rules for criminal cases will be published for comment and approved
in odd-numbered years. Some sets of rules may be amended annually. The complete schedule for the amendment of specific sets of
rules can be found in Paragraph K of Rule 23-106 NMRA. The new
rule-making process will allow for the consideration of a rule change
request outside the normal deadlines if emergency circumstances
Other News
Free Spring CLEs
The final in a series of free CLEs is being
offered in appreciation to attorneys who participate in the Volunteer Attorney Program.
Srinivas Mukkamala, Ph.D., and Mark Fidel,
CAaNES, will present Electronic Discovery
from 10 a.m.–noon, April 11, at Law Access New Mexico, 4141 Montgomery Blvd.
NE, Albuquerque. The session is free for
VAP volunteers/$50 for non-volunteers. To
register, contact Erin Olson, 505-768-6114
or [email protected].
Senior Citizens’ Law Office
Monthly Seminar Speaker Series
In celebration of its 30th anniversary,
Senior Citizens’ Law Office is sponsoring
a monthly seminar speaker series on legal
issues relevant to the elderly. Ellen Leitzer
and Dr. Nancy Guinn will present Advance
Directives from 6–7:30 p.m., April 9, at the
Albuquerque Mennonite Church, 1300 Girard Blvd. NE, Albuquerque. Contact Guy
E. Lescault, 505-265-2300 or glescault@
sclonm.org.
exist, such as the need for an immediate rule amendment because
of a change in the law by an opinion or statutory change or because
of some other unforeseen situation posing an imminent threat to
the administration of justice.
Although the new rule-making process does not take effect until
July 1, a test run of the new process is occurring this month with
the publication for comment of a large number of proposed rule
amendments, which will become the norm in March of each year.
Because a large number of rules are being published at one time, the
actual text of the proposed rule amendments will not be published
in the Bar Bulletin. Instead, the Court will now publish a detailed
summary of proposed rule amendments in the Bar Bulletin with
the full text of the proposed amendments published on the Court’s
website. A similar approach will be used in the fall for approved
rule amendments. A summary of the proposed rule amendments
currently published for comment may be found on page 17 of this
issue of the Bar Bulletin.
The new rule-making process is subject to revision if experience over
the next year or two reveals areas where the process can be further
improved. The Court remains committed to exercising its judicial
rule-making function in a manner that is efficient and predictable,
while ensuring that the Court’s rules promote the effective administration of justice. To that end, the Court invites comments on the
new rule-making process and welcomes suggestions for improving
the process in the future. Comments and suggestions are encouraged
anytime and may be submitted to Joey D. Moya, Clerk of Court,
PO Box 848, Santa Fe, NM 87504; by fax to 505-827-4837; or by
email to [email protected].
Nominations Now Being Accepted
2013 State Bar
Annual Awards
Send a letter of nomination for each nominee to:
Joe Conte, Executive Director
State Bar of New Mexico
PO Box 92860
Albuquerque, NM 87199-2860
fax to 505-828-3765 or email [email protected]
Deadline for Nominations: April 30
For more information, see the
Feb. 27 (Vol. 52, No. 9) Bar Bulletin
or visit
www.nmbar.org/Attorneys/AM/callfornominations.pdf.
Legal Education
March
27
Making Your Case With a Better
Memory With Paul Mellor
6.0 G
Albuquerque
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
28
Techniques and Traps for Merging
Unincorporated Entities
1.0 G
National Teleseminar
505-797-6020
www.nmbarcle.org
29
4–5
18
28
Solo and Small Firm Institute
5.5 G, 1.0 EP
Albuquerque
505-797-6020
www.nmbarcle.org
Employment Investigations:
Protecting You and Your Clients
From Liability
1.0 G
505-797-6020
www.nmbarcle.org
April
2
The Federal Process in New Mexico
6.0 G
Video Replay
505-797-6020
www.nmbarcle.org
2
23rd Annual Appellate Practice
Institute
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
2
Trial Practice Workshop: Putting an
Edge on the Evidence
4.7, G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
2–3
Overtime, Exempt and Non–exempt:
2013 Wage and Hour Update,
Parts 1 and 2
2.0 G
Center for Legal Education of
NMSBF
505–797–6020
www.nmbarcle.org
UCC Article 9 Practice Toolkit:
From Attachment to Remedies,
Parts 1 and 2
2.0 G
NMSBF
505–797–6020
www.nmbarcle.org
9
Estate Planning For Farmers
and Ranchers
1.0 G
NMSBF
505–797–6020
www.nmbarcle.org
11–12Planning and Drafting for Single
Member LLCs, Parts 1 and 2
2.0 G
NMSBF
505–797–6020
www.nmbarcle.org
16
Structuring Preferred Stock and
Preferred Returns in Business and
Real Estate Transactions
1.0 G
NMSBF
505–797–6020
www.nmbarcle.org
Religious Accommodations
in the Workplace
1.0 G
NMSBF
505–797–6020
www.nmbarcle.org
19
Ethics and Client Confidences:
An Advanced Guide
1.0 EP
NMSBF
505–797–6020
www.nmbarcle.org
23
Understanding and Planning Title
Insurance in Commercial Real
Estate
1.0 G
NMSBF
505–797–6020
www.nmbarcle.org
24
Commercial and Residential
Landlord Tenant Law Update
5.6 G, 1.0 EP
Albuquerque
Sterling Education Services, Inc.
715–855–0495
www.sterlingeducation.com
Legal Education
25
Estate Planning a Long–Term Low
Interest Rate Environment
1.0 G
NMSBF
505–797–6020
www.nmbarcle.org
www.nmbar.org
26–272013 New Mexico Collaborative
Law Symposium: The Basics
10.7 G, 1.0 EP
NMSBF
505–797–6020
www.nmbarcle.org
30
Ethics Issues in Representing
Elderly Clients
1.0 EP
NMSBF
505–797–6020
www.nmbarcle.org
2–3
Like-Kind Exchange Planning
in Real Estate, Parts 1 and 2
2.0 G
NMSBF
505–797–6020
www.nmbarcle.org
8
Ethics and the Use of Metadata
in Litigation and Law Practice
1.0 EP
NMSBF
505–797–6020
www.nmbarcle.org
16
7
14
21–22Real Estate Development
Agreements, Parts 1 and 2
2.0 G
NMSBF
505–797–6020
www.nmbarcle.org
26
New Medicare Tax Impact
on Business Planning
1.0 G
NMSBF
505–797–6020
www.nmbarcle.org
May
Choice of Entity for Service-Based
and Professional Practice Businesses
2.0 G
NMSBF
505–797–6020
www.nmbarcle.org
Estate Planning for Education
and Gifts to Minors
1.0 G
NMSBF
505–797–6020
www.nmbarcle.org
Attorney Ethics in Adding Lawyers
to a Firm
1.0 EP
NMSBF
505–797–6020
www.nmbarcle.org
23
Ethics and Billing and Collecting
Fees
1.0 EP
NMSBF
505–797–6020
www.nmbarcle.org
Mary Torres Elected ABA Secretary
By Greg L. Gambill
A
dding yet another milestone in her continued leadership of local, state, and national bar associations, Mary T. Torres has been elected secretary of the American Bar Association for 2014. Her
election marks the first time in its history that a Hispanic woman has served as an officer of the ABA.
Her history of activities, awards, and appointments is extensive, with a national presence that is impressive. As the 2002 president of the State Bar of New Mexico, Torres was the first Hispanic woman to serve
as a president of any state bar association in the country. She has served on boards of the UNM School
of Law, the New Mexico Defense Lawyers Association, the Defense Research Institute, and with state
and national Hispanic Bar associations. She was part of the executive council of the National Conference of Bar Presidents from
2002–05, leading this organization as president in 2009—again, as the first Latina to do so. Her long-standing commitment to
the ABA has been marked by service on numerous committees and commissions. Currently, she is the chair of the ABA Center
for Racial and Ethnic Diversity and secretary of the Minority Caucus to the House of Delegates. She was the only State Bar
leader to serve on the Steering Committee for U.S. Supreme Court Justice Anthony Kennedy’s Dialogue on Freedom program.
The ABA House of Delegates selected Torres at the ABA Midyear Meeting Feb. 10 in Dallas. She was accompanied by husband
John Chavez, her brothers, family, friends, and members of the State Bar as she awaited the results of the election. Her nomination
will be confirmed at the August ABA Annual Meeting in San Francisco. Until then, she will hold elect status while she serves on
the ABA Board of Governors during 2013-14. She will begin her three-year term as secretary in August 2014.
A thirteenth generation native New Mexican, Torres received her bachelor’s degree from New Mexico Tech in 1983 and was
named a “Tech Scholar.” She was an educator in her hometown of Socorro before attending law school at the University of New
Mexico School of Law, where she received her Juris Doctor degree in 1992.
Torres primarily handles civil litigation matters at the Beall & Biehler Law Firm in Albuquerque. She has extensive experience
in civil rights, employment, insurance, premises liability, and governmental liability-related matters, with jury and bench trial
experience in both state and federal courts.
New Mexico Courts E-Filing Update
■■ E-filing will begin on a voluntary basis April 1 and will become mandatory April
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—From the New Mexico Supreme Court
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective March 15, 2013
Petitions for Writ of Certiorari Filed and Pending:
No. 34,065
No. 34,063
No. 34,064
No. 34,062
No. 34,061
No. 34,060
No. 34,059
No. 34,058
No. 34,057
No. 34,056
No. 34,055
No. 34,054
No. 34,053
No. 34,052
No. 34,051
No. 34,046
No. 34,048
No. 34,047
No. 34,040
No. 34,045
No. 34,044
No. 34,043
No. 34,041
No. 34,027
No. 34,039
No. 34,037
No. 34,007
No. 34,010
No. 34,035
No. 34,034
No. 34,033
No. 34,032
No. 34,029
No. 34,028
No. 34,023
No. 33,994
No. 33,943
No. 33,868
No. 33,819
No. 33,866
No. 33,863
Date Petition Filed
Moore v. Nance
12-501 03/15/13
Uecker v. Hatch
12-501 03/15/13
McReynolds v. Brown
12-501 03/14/13
State v. Williams
COA 31,512 03/13/13
Lopez v. Janecka
12-501 03/13/13
State v. Atwater
COA 31,218 03/13/13
State v. Littleton
COA 32,230 03/13/13
State v. Knotts
COA 32,305 03/13/13
State v. Torres
COA 31,567 03/13/13
State v. Stapleton
COA 32,360 03/11/13
Smith v. Bravo
12-501 03/11/13
Weiss v. THI
of New Mexico
COA 30,296 03/11/13
State v. Hicks
COA 30,370 03/08/13
State v. Silva
COA 32,402 03/08/13
Ysasi v. Bravo
12-501 03/08/13
Pargin Realty v. Schmidt COA 31,689 03/07/13
State v. Baca
COA 31,340 03/06/13
State v. Ingram
COA 30,961 03/05/13
Mendez v. Wells Fargo
COA 32,388 03/05/13
Millar v. Dept. of
Workforce Solutions
COA 31,581 03/04/13
State v. Riordan
COA 31,795 03/04/13
State v. Martinez
COA 32,271 03/04/13
Blake v. Janecka
12-501 03/04/13
State v. Hess
COA 31,536 03/01/13
Cavu Co. v. Martinez
COA 32,021 02/28/13
State v. Morris
COA 31,815 02/27/13
City of ABQ v. AFSCME
Local 3022
COA 31,075 02/27/13
N.M. Cattle Growers v. N.M. Water
Quality Control Comm. COA 31,191 02/26/13
Responses filed 3/13/13&3/14/13
Town of Edgewood v. N.M. Municipal
Boundary Comm.
COA 30,768 02/25/13
McGraw v. Bernalillo
County Commissioners COA 32,637 02/25/13
State v. Maples
COA 30,507 02/22/13
State v. Torres
COA 31,567 02/22/13
State v. Warner
COA 31,819 02/19/13
State v. Castor
COA 31,819 02/19/13
State v. Garcia
COA 30,852 02/13/13
Response ordered; due 4/2/13
Gonzales v. Williams
COA 32,274 01/14/13
State v. Laura J. COA 31,324/32,192 12/03/12
Response to X-Petition filed 1/8/13
Burdex v. Bravo
12-501 11/28/12
Response ordered; filed 1/22/13
Chavez v. State
12-501 10/29/12
Reza v. State
12-501 10/15/12
Response ordered; filed 1/28/13
Murillo v. State
12-501 10/10/12
No. 33,867
No. 33,811
No. 33,810
No. 33,539
No. 33,630
Roche v. Janecka
12-501
Skidgel v. Hatch
12-501
Gonzales v. Marcantel
12-501
Contreras v. State
12-501
Response ordered; due 10/24/12
Utley v. State
12-501
09/28/12
09/14/12
09/14/12
07/12/12
06/07/12
Certiorari Granted but not yet Submitted to the Court:
(Parties preparing briefs)
Date Writ Issued
No. 32,804 State v. Servantez
COA 30,414 02/07/11
No. 33,001 State v. Rudy B.
COA 27,589 06/08/11
No. 33,046 State v. Munoz
COA 30,837 07/21/11
No. 33,265 State v. Garcia
COA 29,338 11/17/11
No. 33,565 State v. Ballard
COA 30,187 05/02/12
No. 33,571 State v. Miller
COA 29,244 05/11/12
No. 33,592 State v. Montoya
COA 30,470 05/24/12
No. 33,604 State v. Ramirez
COA 30,205 06/05/12
No. 33,653 Bustos v. Zia Park LLC COA 32,068 06/28/12
No. 33,725 State v. Pasillas
COA 31,513 09/14/12
No. 33,779 State v. Vento
COA 30,469 09/21/12
No. 33,808 State v. Nanco
COA 30,788 10/12/12
No. 33,796 State v. Vasquez
COA 29,868 10/12/12
No. 33,770 Vaughn v.
St. Vincent Hospital
COA 30,395 10/12/12
No. 33,856 Gray v. Cherokee Nation Industries
Professional Svcs. LLC
COA 32,194 11/02/12
No. 33,847 State v. Urquizo
COA 30,337 11/02/12
No. 33,837 State v. Trujillo
COA 30,563 11/02/12
No. 33,763 State v. Almanzar
COA 30,600 11/02/12
12-501 11/02/12
No. 33,862 State v. Gerardo P.
COA 31,250 11/09/12
No. 33,870 State v. Perez
COA 31,678 11/16/12
No. 33,792 State v. AFSCME
Council 18
COA 30,847 11/16/12
No. 33,898 Bargman v. Skilled
Healthcare Group, Inc. COA 31,088 12/06/12
COA 31,470 12/06/12
No. 33,877 State v. Alvarez
COA 31,987 12/06/12
No. 33,874 Encinas v.
Whitener Law Firm
COA 30,106 12/06/12
No. 33,915 State v. Leon
COA 31,067 12/26/12
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 12/26/12
No. 33,817 Gordon v. King
12-501 12/26/12
No. 33,924 AFSCME Council 18 v.
City of Albuquerque
COA 30,927 01/07/13
No. 33,932 State v. Finch
COA 30,706 01/10/13
No. 33,952 Melendez v. Salls Brothers COA 32,293 01/18/13
No. 33,949 Rodriguez v. Del Sol
Shopping Center COA 30,421/30,578 01/18/13
No. 33,946 State v. Martinez
COA 30,637 01/18/13
No. 33,930 State v. Rodriguez
COA 30,938 01/18/13
No. 33,969 Safeway, Inc. v. Rooter
2000 Plumbing
COA 30,196 01/28/13
No. 33,896 Rodriguez v. Del Sol
Shopping Center COA 30,421/30,578 01/28/13
Writs of Certiorari
No. 33,977
No. 33,970
No. 34,009
No. 34,006
No. 33,999
No. 33,997
No. 33,993
No. 33,971
No. 33,938
No. 33,928
No. 34,013
http://nmsupremecourt.nmcourts.gov.
State v. Calderon
COA 30,844
State v. Parvilus
COA 30,379
State v. Huettl
COA 31,141
Janet v. Marshall
COA 31,090
State v. Antonio T.
COA 30,827
State v. Antonio T.
COA 30,827
Fowler v. Vista Care and
American Home Ins. Co. COA 31,438
State v. Newman
COA 31,333
State v. Crocco
COA 31,498
Skowronski v. N.M. Public
Education Dept.
COA 31,119
Foy v. Austin Capital
COA 31,421
02/08/13
02/08/13
03/01/13
03/01/13
03/01/13
03/01/13
No. 33,483
No. 33,382
03/01/13
03/01/13
03/01/13
No. 33,375
No. 33,676
03/01/13
03/15/13
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral argument
or briefs-only submission)
No. 32,690
No. 32,868
No. 32,844
No. 32,713
No. 32,717
No. 32,915
No. 32,941
No. 32,968
No. 32,860
No. 33,070
No. 33,023
No. 32,605
No. 33,057
No. 33,331
No. 33,077
No. 33,257
No. 33,362
No. 33,353
No. 33,372
No. 33,364
No. 33,203
No. 33,380
No. 33,217
No. 33,224
No. 33,296
No. 33,226
No. 33,014
No. 33,324
No. 33,139
No. 33,182
Submission Date
Joey P. v. Alderman-Cave
Milling & Grain Co.
COA 29,120
Nunez v. Armstrong
General Contractors
COA 29,522
Gonzalez v. Performance
Paint, Inc.
COA 29,629
Bounds v. D’Antonio
COA 28,860
N.M. Farm and Livestock
Bureau v. D’Antonio
COA 28,860
State v. Collier
COA 29,805
Titus v.
City of Albuquerque
COA 29,461
Sunnyland Farms, Inc. v.
Central N.M. Electric
COA 28,807
State v. Stevens
COA 29,357
Montoya v.
City of Albuquerque
COA 29,838
State v. Gurule
COA 29,734
State v. Franco
COA 30,028
State v. Turrietta
COA 29,561
Strausberg v.
Laurel Healthcare
COA 29,238
State v. Gonzales
COA 28,700
State v. Boyse
COA 30,656/30,657
Convisser v. Ecoversity
COA 30,100
Flemma v.
Halliburton Energy
COA 29,933
Schultz v. Pojoaque Tribal
Police Dept.
COA 28,508
Nettles v. Ticonderoga
Owners Association
COA 31,342
State v. Davis
COA 28,219
City of Rio Rancho v.
Palenick
COA 30,136
State v. Ramos
COA 29,514
Bank of New York v.
Romero
COA 29,945
State v. Gutierrez
COA 29,997
State v. Olsson
COA 29,713
State v. Crane
COA 29,470
State v. Evans
COA 31,331
State v. Polson
COA 31,138
Moongate Water Co. v.
City of Las Cruces
COA 27,889
05/11/11
10/11/11
10/11/11
10/13/11
10/13/11
11/15/11
11/16/11
No. 33,383
No. 33,384
No. 33,650
No. 33,711
No. 33,627
No. 33,579
No. 33,677
No. 33,693
No. 33,635
No. 33,687
No. 33,611
No. 33,594
No. 33,589
No. 33,632
12/12/11
01/10/12
No. 33,759
01/30/12
01/30/12
03/28/12
04/30/12
No. 33,487
No. 33,548
No. 33,709
No. 33,567
No. 33,566
No. 33,772
05/14/12
05/16/11
07/30/12
08/13/12
08/14/12
08/15/12
09/10/12
09/10/12
09/10/12
09/11/12
09/12/12
09/12/12
10/31/12
11/13/12
11/26/12
11/26/12
State v. Consaul
COA 29,559
N.M. Human Services v.
Starko, Inc.
COA 29,016/27,922
Presbyterian Health Plan v.
Starko, Inc.
COA 29,016/27,922
Cimarron Health Plan v.
Starko, Inc.
COA 29,016/27,922
State v. Cobrera
COA 29,591
City of Farmington v.
Pinon-Garcia
COA 30,888
City of Farmington v.
Pinon-Garcia
COA 30,888
N.M. Taxation and
Revenue Dept. v. Tindall COA 31,194
N.M. Taxation and Revenue Dept. v.
BarnesandNoble.com
COA 31,231
Avalos v. N.M. Counseling and
Therapy Practice Board COA 30,611
State v. Orquiz
COA 31,247
State v. Pangaea Cinema COA 30,380
Baker v.
Hedstrom COA 30,475/30,491/30,639
Elane Photography v.
Willock
COA 30,203
Bank of America v.
Quintana
COA 30,354
Fallick v. Montoya
COA 30,172
Zhao v. Montoya
COA 30,172
First Baptist Church of
Roswell v. Yates Petroleum COA 30,359
Martinez v. Public Employees
Retirement Association COA 31,310
State v. Martinez
COA 30,580
State v. Marquez
COA 30,565
Charter Bank v. Francoeur COA 30,551
State v. Leticia T.
COA 30,664
State v. Leticia T.
COA 30,664
City of Albuquerque v.
Blakenship
COA 31,960
12/17/12
01/15/13
01/15/13
01/15/13
01/16/13
01/23/13
01/23/13
02/11/13
02/11/13
02/12/13
02/12/13
02/13/13
02/25/13
03/11/13
03/12/13
03/13/13
03/13/13
03/13/13
03/25/13
03/25/13
04/15/13
04/16/13
04/30/13
04/30/13
04/30/13
Petition For Writ Of Certiorari Denied:
No. 34,036
No. 34,030
No. 34,021
No. 34,019
No. 34,024
No. 34,005
No. 34,014
Harris v. Brown
State v. Wilson
Van Auken v. Catron
Van Auken v. Catron
State v. Briseno
State v. Kirk
State v. Trujillo
Writ Of Certiorari Quashed:
No. 33,376
No. 33,568
State v. Gonzales
State v. Chung
Date Order Filed
12-501 03/14/13
COA 28,504 03/14/13
COA 31,961 03/14/13
COA 31,961 03/14/13
COA 31,393 03/12/13
COA 32,272 03/12/13
COA 30,918 03/11/13
Date Order Filed
COA 29,843 03/15/13
COA 30,384 03/15/13
Writ Of Certiorari - Proceedings Abated:
No. 33,853 State v. Dean
Date Order Filed
COA 32,096 03/15/13
Writ Of Certiorari - Proceedings Dismissed:
No. 32,696 Herbison v. Chase Bank
Date Order Filed
COA 30,630 03/15/13
12/10/12
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Wendy F. Jones, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925
Published Opinions
Date Opinion Filed
No. 30546
8th Jud Dist Taos CV-09-447, A CORDOVA v J CLINE (affirm in part, reverse in part and remand)
3/11/2013
No. 31910
11th Jud Dist McKinley CV-11-592, D LUGINBUHL v CITY OF GALLUP (affirm)
3/11/2013
No. 30447
1st Jud Dist Santa Fe CV-09-2979, W KIMBRELL v L KIMBRELL (affirm in part,
reverse in part and remand)
3/13/2013
No. 31491
1st Jud Dist Santa Fe DM-06-448, DV-06-280, W KIMBRELL v L KIMBRELL
(affirm in part, reverse in part and remand)
3/13/2013
Unpublished Opinions
No. 30486
3rd Jud Dist Dona Ana CR-08-1816, STATE v E OLIVAS (affirm)
3/11/2013
No. 31459
2nd Jud Dist Bernalillo CV-10-8564, J ALROY v BOARD OF REGENTS OF UNM (reverse)
3/11/2013
No. 32484
5th Jud Dist Eddy CR-11-323, STATE v M TOWLER (affirm)
3/11/2013
No. 32608
5th Jud Dist Eddy CV-11-532, CHICA ENERGY v COG OPERATING (affirm)
3/11/2013
No. 30465
2nd Jud Dist Bernalillo PB-07-588, P SAAVEDRA v M SAAVEDRA (affirm)
3/12/2013
No. 30810
2nd Jud Dist Bernalillo CV-08-3470, BANK OF ABQ v AMBASSADOR (affirm in part and remand)
3/12/2013
No. 31515
2nd Jud Dist Bernalillo CR-07-3711, STATE v A RAMBES (reverse)
3/12/2013
No. 32520
1st Jud Dist Santa Fe CV-09-783, J TAMBOURNE v TERMINIX (dismiss)
3/13/2013
No. 32627
11th Jud Dist San Juan CV-11-411, BUTLER v HI-COUNTRY CHEVROLET (reverse)
3/13/2013
No. 32368
10th Jud Dist Quay CV-12-67, G CORLISS v L BOND (affirm)
3/14/2013
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Clerk’s Certificate
of Reinstatement
to Active Status
As of February 19, 2013:
Mary W. Craig
211 North Canal
Carlsbad, NM 88220
Scott D. Johnson
PO Box 357
Aztec, NM 87410-0357
John A. Klecan
5049 N. 35th Street
Phoenix, AZ 85018
Barbara J. Merryman
4808 Charlotte Court NE
Albuquerque, NM 87109
Amanda Uberti Molinari
6811 Mallow Court
Springfield, VA 22152
Hillary R. White
135 CR 5715
Natalia, TX 78059
of Change
to Inactive Status
Effective December 27, 2012:
Melanie Carver
California Department
of Mental Health
1600 9th Street, Suite 433
Sacramento, CA 95814-6437
Effective January 7, 2013:
Tito D. Chavez
1500 Mountain Road NW
December 15, 2012:
Daniel L. Cleavinger
PO Box 2470
Farmington, NM 87499-2470
Hon. C. Burton Cosgrove,
III (ret.)
801 Loma Linda Place SE
Marcia J. Lieberman
1118 Laurel Street, Apt. 1
Menlo Park, CA 94025-3342
Alan Louis Genicoff
2536 Poppy Drive
Lodi, CA 95242-4776
Ellen T. Louderbough
4805 Southern Avenue SE
Sean E.P. Goodbody
Withers Seidman Rice
& Mueller PC
101 S. 3rd Street, Suite 265
Grand Junction, CO
81501-2409
Lydia M. Micheletti
5260 SW 31st Street
Ocala, FL 34474-4333
Stephen W. Hanks
PO Box 670
Arroyo Seco, NM 87514-0670
Robert L. Diaz
8409 Ashton Place NE
E. Craig Hay, III
3701 S. Hudson Street,
Apt. 212
Seattle, WA 98118-2162
Susan Bronstein Dunleavy
324 Wellesley Drive SE
Jennifer M. Heim
803 Mason Drive
Roswell, NM 88201-1138
Dominic E. Dutton
The Dutton Firm
2450 W. Tom Watson Drive
Tucson, AZ 85742-8530
Vicki Carol Irwin
9518 Potters Point
Helotes,TX 78023-4365
Richard Andre Bachand
PO Box 3129
Del Mar, CA 92014-6129
Joseph D. Edmonds
4415 Condor Court, Apt. 104
Fairbanks, AK 99709-3464
Ann Follin Badway
PO Box 256
Tijeras, NM 87059-0256
Doris A. Faust
NM Legislative
Council Service
490 Old Santa Fe Trail,
Suite 411
Santa Fe, NM 87501-2780
Frances P. Brummett
113 Sixth Street NW, Suite E
Patricia Shukis Fraser
110 Loudat Lane
Ruidoso, NM 88345-5924
N. Jean Fischer
8 Upper San Pedro Road
Espanola, NM 87532-8139
Will Jeffrey
1109 Rhode Island Street NE
Ellen Rhona Kemper
2300 W. Alameda Street,
Apt. B1
Santa Fe, NM 87507-9656
Kathleen Davison Lebeck
1006 Tramway Lane NE
Paula M. Noonan
6 Briarwood Drive
Bow, NH 03304-3903
Gordon W. Reiselt
1515 Silver Avenue SE
Leslie Lenore Seckler
PO Box 13741
Jennifer L. Street
8204 Pickard Avenue NE
Robin Dale Strother
PO Box 750
Mancos, CO 81328-0750
Maija D. West
Moxie Lab
563 Figueroa Street
Monterey, CA 93940-3232
Grayson Paul Wolfe
770 5th Street NW, Apt. 318
Washington, DC 20001-2649
Clerk’s Certificates
of Name and Address
Change
Christine Zuni Cruz
f/k/a Christine P. Zuni
University of New Mexico
School of Law
MSC 11 6070
1 University of New Mexico
505-277-5265
505-277-4367 (fax)
e-mail: [email protected]
Hon. Michelle
Castillo Dowler
f/k/a Michelle Dowler
Bernalillo County
Metropolitan Court
PO Box 133
401 Lomas Blvd. NW
505-841-8193
505-222-4813 (fax)
As of March 5, 2013:
Gina LaRocco Goddard
f/k/a Gina L. LaRocco
6630 SE Knight Street
Portland, OR 97206
630-606-0533
[email protected]
Corinne L. Holt
f/k/a Corinne L. Hale
Allen, Shepherd, Lewis,
Syra & Chapman PA
PO Box 94750
4801 Lang Avenue NE,
Suite 200 (87109)
505-341-0110
505-341-3434 (fax)
[email protected]
Ameryn Maestas
f/k/a/ Ameryn M. Kreiner
DNA-People’s
Legal Services, Inc.
PO Box 987
Shiprock, NM 87420-0987
505-368-3200
505-368-3212 (fax)
[email protected]
Crystal Emerald Lees
f/k/a Crystal Emerald
Whalen
Hoffman Kelley LLP
1700 Louisiana Blvd. NE,
Suite 200
505-346-3130
800-787-9748 (fax)
[email protected]
M. Micah E. Standridge
f/k/a M. Micah E. Watson
Third Judicial District Court
201 W. Picacho Avenue
Las Cruces, NM 88005
575-528-8344
575-528-8290 (fax)
[email protected]
of Withdrawal
Effective February 28, 2013:
Brenda L. Braden
17965 SW Shawnee Trail
Tualatin, OR 97062
Susan A. Moncrief Dehne
1800 Morris Street NE
Ronald M. Friedman
PO Box 10362
State College, PA 16805-0362
Shelley A. Scott
3414 Cascadera Drive
Austin, TX 78731
Brian C. Wedl
Jolley Urga Wirth Woodbury
& Standish
3800 Howard Hughes
Parkway, Suite 1600
Las Vegas, NV 89169
Effective March 8, 2013:
Stephen M. Wells
101 W. 9th Street
Durango, CO 81301-5489
of Correction
The clerk’s certificate dated
January 25, 2013, has an incorrect address for the following attorneys and the correct
address is:
Bruce S. McDonald
[email protected])
Laura K. Vega
[email protected])
Law Offices of
Bruce S. McDonald
211 12th Street NW
505-254-2854
505-254-2853 (fax)
of Disbarment
On February 13, 2013:
Bradley R. Sims
The Law Offices
of Bradley R. Sims
125 W. Griggs Avenue
Las Cruces, NM 88001-1235
575-524-7703
575-525-7758 (fax)
[email protected]
of Admission
On March 4, 2013:
Gregory L. Baker
BakerHostetler
1050 Connecticut Ave., NW
Washington, DC 20036-5304
202-861-1696
On February 15, 2013:
Brian P. Sweeney
United States Patent
and Trademark Office
300 River Place, Suite 2900
Detroit, MI 48207
313-446-4906
Clerk’s Certificate of
Indefinite Suspension
From Membership in
the State Bar of New
Mexico
Raymond T. Van Arnam
PO Box 694
1200 Indiana Avenue,
Suite B (88310)
Alamogordo, NM 88311-0694
575-439-9660
575-439-9796 (fax)
[email protected]
In Memoriam
As of January 21, 2013:
Donald Klein, Jr.
PO Box 1843
Socorro, NM 87801-1843
Hon. James T. Martin, Jr.
(ret.)
PO Box 2396
Mesilla Park, NM 88047-2396
Hon. Alvin Joe Parker (ret.)
13 Jynteewood
Canyon, TX 79015
Haskell D. Rosebrough
PO Box 840
Gallup, NM 87301-0840
Recent Rule-Making Activity
As Updated by the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Pending Proposed Rule Changes Open for Comment:
Comment Deadline
10-352 Judgments and appeals from
adjudications and terminations
of parental rights
04/17/13
Abuse and Neglect Forms
10-501 Abuse & neglect petition
10-502Summons
10-503 Motion for ex parte order
10-504 Affidavit for ex parte order
10-505A Ex parte custody order
(child in state custody)
10-505B Ex parte custody order
(child not in state custody)
10-510 Affidavit of indigency
10-511 Motion to appoint counsel for parties
10-512 Order appointing counsel for parties
10-513 Motion for service by publication
10-514 Order for service by publication
10-515 Notice of pendency of action
by publication
10-520 Custody order
10-521 ICWA notice
10-522A Adjudicatory judgment and dispositional
order (Uncontested/Non-ICWA)
10-522B Adjudicatory judgment and dispositional
order (Contested/Non-ICWA)
10-522C Adjudicatory judgment and dispositional
order (Uncontested/ICWA)
10-522D Adjudicatory judgment and dispositional
order (Contested/ICWA)
10-530 Initial judicial review order
10-531 Initial permanency order
10-532 Permanency review order
10-533 Periodic judicial review/Permanency order/
Extension of custody order
10-540 Motion to terminate parental rights
10-550 Motion to withdraw as counsel
10-551 Order permitting withdrawal of counsel
10-552 Request to withdraw as counsel and
order approving substitution of counsel
10-553 Notice of substitution of counsel
10-554 Notice of appearance as counsel for child
by guardian ad litem
10-555 Motion to appoint attorney for fourteen
(14) year-old child
10-560Subpoena
10-561 Notice of hearing
10-562 Motion to intervene
10-563 Report of mediation
10-564 Order appointing/changing educational
decision maker
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
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04/17/13
04/17/13
04/17/13
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04/17/13
04/17/13
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04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
ABA Ethics 20/20: Technology and Confidentiality;
Detection of Conflicts of Interest
16-100Terminology
16-101Competence
16-104Communication
16-106 Confidentiality of information
16-117 Sale of law practice
16-404 Respect for rights of third persons
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
Rules Concerning the Unauthorized Practice of Law
17B-001Jurisdiction
04/17/13
17B-002 Appointment of the Disciplinary Board 04/17/13
17B-003 Disciplinary counsel; duties and powers 04/17/13
17B-004Investigation
04/17/13
17B-005 Civil injunction proceedings
04/17/13
17B-006 Determination by the Supreme Court
04/17/13
17B-007 Civil contempt proceedings
04/17/13
17B-008Immunities
04/17/13
17B-009 General provisions
04/17/13
Pro Se and Non-Attorney Appearances in Civil Cases
2-107
Pro se and attorney appearance
04/17/13
3-107
Pro se and attorney appearance
04/17/13
Non-Attorney Prosecutions in Criminal Cases
6-108
Non-attorney prosecutions
7-108
8-111
04/17/13
04/17/13
04/17/13
Orders on Motions to Seal or Unseal Court Records
4-118
Order on motion to seal court records
4-119
Order on motion to unseal court records
9-113
Order on motion to seal court records
9-114
Order on motion to unseal court records
04/17/13
04/17/13
04/17/13
04/17/13
Pro Se and Attorney Appearances in Criminal Cases Rules
6-107
Entry of appearance 04/17/13
7-107
Entry of appearance
04/17/13
8-107
Entry of appearance
04/17/13
Withdrawal of Form 9-306 NMRA
9-306
Withdrawal - Commitment for
preliminary hearing
04/17/13
Judge Excusal and Recusal
3-105
Assignment and designation of judges
3-106
Excusal; recusal; disability
04/17/13
04/17/13
Probable Cause in Criminal Complaint
7-201
Commencement of action
04/17/13
04/17/13
Rule-Making Activity
Civil Forms to Implement and Uniform
Owner-Resident Relations Act
4-913 Writ of restitution (Restitution to Owner) 04/17/13
(Uniform owner-Resident Relations Act)
4-913A Order setting escrow deposit/appeal bond
(Uniform Owner-Resident Relations Act) 04/17/13
Preliminary Hearing Rule and Forms
6-202
Preliminary hearing
9-206
Notice of preliminary hearing
9-206A Order on preliminary hearing
9-206B Order for extension of time
for preliminary hearing
Bench Warrants for Failure to Pay Fines and Fees
6-207
Bench warrants
8-206
Bench warrants
Voluntary Dismissal by the Prosecution
and Refiled Proceedings
6-506A Voluntary dismissal and refiled
proceedings
8-506A Voluntary dismissal and refiled
proceedings
04/17/13
04/17/13
04/17/13
Sealing of Records in Appeals
from Administrative Proceedings
1-079
Public inspection and sealing
of court records
Pain and Suffering; Loss of Enjoyment of Life
13-1807 Pain and suffering
13-1807A Pain and suffering;
loss of enjoyment of life
04/17/13
04/17/13
04/17/13
04/17/13
Second Degree Criminal Sexual Penetration
14-956 Criminal sexual penetration in the
second degree; force or coercion;
essential elements
14-956A Criminal sexual penetration in the
second degree; for or coercion;
child 13 to 18; essential elements
04/17/13
Indecent Exposure
14-970 Indecent exposure; essential elements
04/17/13
14-970A Aggravated indecent exposure; essential elements
04/17/13
04/17/13
04/17/13
Court Interpreters in Municipal Court
8-113
Court interpreters in Municipal Court
04/17/13
Motions to Suppress Evidence
6-304Motions
8-304Motions
04/17/13
04/17/13
Tampering with Evidence
14-2241 Tampering with evidence
14-6019 Special verdict; tampering with evidence
To view all pending proposed rule changes (comment period open or closed),
visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website
at http://www.nmcompcomm.us.
04/17/13
04/17/13
04/17/13
04/17/13
04/17/13
Rules/Orders
http://www.nmcompcomm.us/
Notice of Publication for Comment:
Proposed Amendments to Supreme Court Rules
of Practice and Procedure
The following Supreme Court Committees are considering whether
to recommend for the Supreme Court’s consideration proposed
amendments to the rules of practice and procedure summarized
below. If you would like to view and comment on the proposed
amendments summarized below before they are submitted to the
Court for final consideration, you may do so by either submitting
your comment electronically through the Supreme Court’s website at
http://nmsupremecourt.nmcourts.gov, by email to [email protected], by fax to 505-827-4837, or by mail to
Joey D. Moya, Clerk
New Mexico Supreme Court
P.O. Box 848
Santa Fe, NM 87504-0848
Your comments must be received by the Clerk on or before
April 17, 2013, to be considered by the Court. Please note that
any submitted comments may be posted on the Supreme Court’s
web site for public viewing.
________________________________
Children’s Court Rules Committee
Judgments and appeals from adjudications and terminations
of parental rights
[Rule 10-352 NMRA]
The Children’s Court Rules Committee is recommending that
Rule 10-352 NMRA be amended to clarify counsel’s duty to file a
notice of appeal from a termination of parental rights or an adjudication of abuse or neglect. In particular, the proposed amendments
provide guidance for attorneys who are unable to contact their clients
during the time permitted to appeal such a ruling.
Abuse and Neglect Forms
[Article 4, amended and recompiled in part, to new Article 5]
The Children’s Court Rules Committee is recommending that
the forms pertaining to abuse and neglect proceedings, which are
currently scattered throughout Article 4 of the Children’s Court
Rules, be recompiled in a new article, Article 5. The committee
also is recommending that the existing abuse and neglect forms be
updated to conform with changes to the Children’s Code, and that
new forms be adopted to provide further assistance in abuse and
neglect proceedings. The committee is recommending that the new
article include the following forms and be numbered as follows:
10-501 Abuse and neglect petition
Recompiled as amended from Form 10-454 NMRA
10-502 Summons
10-503 Motion for ex parte custody order
10-504 Affidavit for ex parte custody order
10-504A Ex parte custody order (child in state
custody)
10-504B Ex parte custody order (child not in state
custody)
10-510
Affidavit of indigency
Recompiled as amended from Form 10-456A NMRA
10-511
Motion to appoint counsel for parties
New Material
10-512
Order appointing counsel for parties
New Material
10-513
Motion for service by publication
New Material
10-514
Notice of pendency of action by publication
New Material
10-515
Notice of pendency of action by publication
10-520
Custody order
New Material
10-521
ICWA notice
New Material
10-522A Adjudicatory judgment and dispositional
order (Uncontested/Non-ICWA)
New Material
10-522B Adjudicatory judgment and dispositional
New Material
10-522C Adjudicatory judgment and dispositional
order (Uncontested/ICWA)
New Material
10-522D Adjudicatory judgment and dispositional
New Material
10-530
Initial judicial review order
New Material
10-531
Initial permanency order
New Material
Bar Bulletin -March 27, 2013 - Volume 52, No. 13 17
10-532
Permanency review order
10-533
Periodic judicial review / permanency order / New Material
Extension of custody order
10-540
Motion for termination of parental rights
10-550
Motion to withdraw as counsel
New Material
10-551
Order permitting withdrawal of counsel
Recompiled as amended from Form 10-407.1A NMRA
10-552
Request to withdraw as counsel and order
approving substitution of counsel
Recompiled as amended from Form 10-407.2 NMRA
10-553
Notice of substitution of counsel
Recompiled as amended from Form 10-407.3 NMRA
10-554
Notice of appearance as counsel for child by
guardian ad litem
Recompiled as amended from Form 10-408B NMRA
10-555
Motion to appoint attorney for fourteen (14)
year-old child
Recompiled as amended from Form 10-408C NMRA
10-560
Subpoena
10-561
Notice of hearing
10-562
Motion to intervene
10-563
Report of mediation
10-564
Order appointing/changing educational
decision maker
New Material
The forms pertaining to delinquency proceedings will remain in
Article 4, but the committee is currently considering proposed
amendments to those forms to publish for comment at a later date.
Code of Professional Conduct Committee
ABA Ethics 20/20: Technology & Confidentiality; Detection of Conflicts of Interest
[Rules 16100, 101, 104, 106, 117, and 404 NMRA]
The Code of Professional Conduct Committee recommends that
the Supreme Court amend Rules 16100, 101, 104, 106, 117, and
404 NMRA to reflect recent changes to the American Bar Association’s Model Rules of Professional Conduct. These changes address
advances in technology and the risks that these advances pose to
client confidentiality. The proposed amendments give guidance to
lawyers regarding their ethical obligations to protect client information when using technology. The Committee also recommends
that the Court amend Rule 16-106 to address recent changes to
ABA Model Rule 1.6 and the Court’s opinion in Mercer v. Reynolds,
2013-NMSC-002. The proposed amendments give lawyers the
ability to disclose limited information to lawyers in other firms in
order to detect and prevent conflicts of interest.
Disciplinary Board
Rules Concerning the Unauthorized Practice of Law
[Rules 17B-001 to -009 NMRA]
The Disciplinary Board proposes that the Supreme Court adopt a
new set of rules, Rules 17B-001 to -009 NMRA, entitled the “Rules
Concerning the Unauthorized Practice of Law.” Under the proposed
rule set, the Disciplinary Board would have the power to investigate
and prosecute the unauthorized practice of law by non-lawyers in
New Mexico. The Rules Concerning the Unauthorized Practice of
Law include the following rules:
17B001. Jurisdiction.
17B-002. Appointment of the Disciplinary Board.
17B-003. Disciplinary counsel; duties and powers.
17B-004. Investigation.
New Material
17B-005. Civil injunction proceedings.
17B006. Determination by the Supreme Court.
17B007. Civil contempt proceedings.
17B008. Immunities.
17B009. General provisions.
Metropolitan Courts Rules Committee and Rules for Courts of
Limited Jurisdiction Committee
Because the rules of procedure for the magistrate, metropolitan,
and municipal courts often overlap, the proposals from the Metropolitan Rules Committee and the Rules of Courts of Limited
Jurisdiction Committee are summarized together in this section. In
some instances, the committees are submitting joint proposals for
the Supreme Court’s consideration that would amend similar rules
in similar ways. In other instances, only one committee is proposing
amendments to its own particular set of rules.
Pro Se and Non-attorney Appearances in Civil Cases
[Rules 2-107 and 3-107 NMRA]
The Metropolitan Courts Rules Committee and the Rules for
Courts of Limited Jurisdiction Committee propose that the Supreme
Court amend Rules 2-107 and 3-107 NMRA. The amendments
would (1) limit certain non-attorney appearances in civil cases; (2)
preclude non-attorneys from receiving a fee for appearing, prosecuting, or defending in a civil proceeding; and (3) explicitly require
counsel not admitted to practice law in New Mexico but licensed to
practice law in another jurisdiction to comply with New Mexico’s
pro hac vice rule.
Non-attorney Prosecutions in Criminal Cases
[Rules 6-108, 7-108, and 8-111 NMRA]
Court amend Rules 6-108, 7-108, and 8-111 NMRA, which govern
non-attorney criminal prosecutions. Under the proposed amendments, law enforcement officers and government employees would
be prohibited from prosecuting any case that is tried before a jury,
any case that involves a charge of driving under the influence of
alcohol or drugs, or any case that involves certain domestic violence
charges. Additionally, the Committees propose the withdrawal of
Paragraphs D and E of the rules, and the Committees ask the Court
to approve new committee commentary explaining the reason for
the withdrawal.
Orders on Motions to Seal or Unseal Court Records
[Forms 4-118, 4-119, 9-113, and 9-114 NMRA]
Court adopt four new forms that magistrate, metropolitan, and
municipal courts can use to implement the Supreme Court’s sealing rules, Rules 2-112, 3-112, 6-114, 7-113, and 8-112 NMRA,
which were adopted in 2010. The proposed new forms include two
civil forms, Form 4-118 NMRA, “Order on motion to seal court
records” and Form 4-119 NMRA, “Order on motion to unseal court
records,” and two criminal forms, Form 9-113 NMRA, “Order on
motion to seal court records,” and Form 9-114 NMRA, “Order on
motion to unseal court records.”
Pro Se and Attorney Appearances in Criminal Cases Rules
[6-107, 7-107, and 8-107 NMRA]
Courts of Limited Jurisdiction Committee ask the Supreme Court
to amend Rules 6-107, 7-107, and 8-107 NMRA. The amendments
provide that certain corporations, limited liability corporations, and
partnerships may defend themselves pro se in magistrate, metropolitan, and municipal courts. The amendments also explicitly require
counsel not admitted to practice law in New Mexico but licensed to
practice law in another jurisdiction to comply with New Mexico’s
pro hac vice rule.
Withdrawal of Form 9-306 NMRA
Courts of Limited Jurisdiction Committee ask the Supreme Court
to withdraw Form 9-306 NMRA because the form is no longer
being used in the magistrate or metropolitan courts.
Judge Excusal and Recusal
The Metropolitan Courts Rules Committee recommends that the
Supreme Court amend Rule 3-105 NMRA to reflect the Bernalillo
County Metropolitan Court’s current practice for replacing a judge
who has been excused or recused. Additionally, the Committee
proposes amendments to Rule 3-106 NMRA to clarify that if a
judge has been recused, the clerk shall give the parties notice of the
recusal and reassignment, but if a judge has been excused, the party
who excused the judge shall give the parties notice of the excusal
and reassignment.
Probable Cause in Criminal Complaint
[Rule 7-201NMRA]
The Metropolitan Courts Rules Committee recommends that the
Supreme Court amend Rule 7-201 NMRA to require that criminal
complaints and citations include facts showing probable cause. The
Committee also proposes new committee commentary for the rule,
explaining that the rule amendment is intended to ensure that the
court has sufficient information to determine whether to issue a
summons or bench warrant. See Rule 7-204(A) NMRA (allowing
the metropolitan court to issue a summons or bench warrant “upon
a sworn statement of the facts showing probable cause that an offense has been committed”).
Civil Forms to Implement the Uniform Owner-Resident Relations Act
[Forms 4-913 and 4-913A NMRA]
The Rules for Courts of Limited Jurisdiction Committee proposes that the Supreme Court amend Form 4-913 NMRA, “Writ of
restitution,” to include a time of day at or after which the writ may
be executed. The Committee also recommends that the Supreme
Court approve a new form, Form 4-913A NMRA, “Order setting
escrow deposit/appeal bond,” which may be issued to a tenant or
resident against whom a judgment has been entered. Form 4-913A
explains what the tenant or resident must do in order to stay eviction
from the property or collection of monetary amounts pending an
appeal of the judgment. Preliminary Hearing Rule and Forms
[Rule 6-202 NMRA and Forms 9-206 and 9-206A NMRA]
The Rules for Courts of Limited Jurisdiction Committee proposes
that the Supreme Court amend Rule 6-202 NMRA, “Preliminary
examination,” to provide that (1) the magistrate court may extend
the time for holding the preliminary hearing for good cause shown
and (2) a magistrate court’s bind-over order to the district court
should include all misdemeanor charges, in addition to any felony
charges for which the magistrate court finds probable cause. The
Committee also proposes several technical revisions to Rule 6-202,
including the adoption of the phrase “preliminary hearing” to replace
the phrase “preliminary examination.” Likewise, the Committee
recommends that the Supreme Court amend Form 9-206 to reflect
the change in terminology from “preliminary examination” to “preliminary hearing.” Finally, the Committee asks the Court to adopt
a new form for use in magistrate courts, Form 9-206A, “Order on
preliminary hearing.”
Bench Warrants for Failure to Pay Fines and Fees
that the Supreme Court add a new Paragraph B to Rules 6-207 and
8-206 NMRA, entitled “Warrants for failure to pay.” The amendments provide that the magistrate and municipal courts may issue
a bench warrant if the defendant has failed to pay fines or fees
ordered by the court, even if the defendant has not been placed on
probation.
Voluntary Dismissal by the Prosecution and Refiled Proceedings
[Rules 6-506A and 8-506A NMRA]
that the Supreme Court amend Rules 6-506A and 8-506A NMRA
to clarify that (1) a felony complaint that is discharged and subsequently refiled generally should be treated as a continuation of the
same case and (2) the court’s acceptance of a guilty or no contest
plea does not preclude the State from dismissing a complaint and
subsequently refiling the complaint as long as the dismissal occurs
prior to sentencing.
Bar Bulletin -March 27, 2013 - Volume 52, No. 13 19
Court Interpreters in Municipal Court
[Rule 8-113 NMRA]
that the Supreme Court amend Rule 8113(C)(2) NMRA to address
cases involving municipal ordinance and code violations for which
there are no comparable state statutes. Currently, in cases involving
municipal code or ordinance violations, Rule 8113(C)(5) requires
the municipal court to appoint a certified court interpreter, unless
one is not reasonably available and other conditions are met. Under
the Committee’s proposed revisions, the municipal court may use
a language access specialist to provide interpretation services “[f ]
or cases exclusively involving municipal ordinances for which there
are no comparable state statutes” without first trying to secure an
interpreter with a higher level of certification.
Motions to Suppress Evidence
that the Supreme Court amend Rules 6-304 and 8-304 NMRA to
provide that magistrate and municipal courts must rule on motions
to suppress evidence prior to the commencement of trial in order
to preserve the prosecution’s right to appeal any order suppressing
evidence. The Committee also proposes new committee commentary explaining that the revisions are made in response to City of
Santa Fe v. Marquez, 2012-NMSC-031, ___ N.M. ___, 285 P.3d
637.
Rules of Civil Procedure for the District Courts Committee
Sealing of records in appeals from administrative proceedings
[Rule 1-079 NMRA]
The Rules of Civil Procedure Committee is recommending that
Rule 1-079 NMRA be amended to provide that any records of
agency proceedings that are sealed in accordance with federal or
state law remain sealed in an appeal to the district court.
UJI-Civil Committee
Pain and Suffering; Loss of Enjoyment of Life
[UJI 13-1807 and new UJI 13-1807A]
The Uniform Jury Instructions for Civil Cases Committee recommends that the Supreme Court amend UJI 13-1807 NMRA and
adopt a new UJI 13-1807A, to address claims of loss of enjoyment
of life. No current instruction exists for the loss of enjoyment of life.
The draft instruction instructs the jury to consider how the plaintiff
may have enjoyed life and how the injury to the plaintiff now affected
that enjoyment. In addition, the Committee recommends replacing outdated language with regard to the “enlightened conscience
of impartial jurors” and “fairness to all parties” with simpler, more
direct language instructing jurors to “use your judgment to decide a
reasonable amount based on the evidence and your common sense.”
UJICriminal Committee
Second Degree Criminal Sexual Penetration
[UJI 14956, and new UJI 14956A]
The Uniform Jury Instructions for Criminal Cases Committee
recommends that the Supreme Court amend UJI 14956 NMRA,
and adopt a new UJI 14956A, to reflect 2007 legislative changes to
the crime of Criminal Sexual Penetration in the Second Degree as it
relates to children under the age of eighteen (18). Proposed new UJI
14-956A attempts to accurately capture the elements of the crime
as defined by the Legislature in its 2007 amendments and would
apply to crimes committed after July 1, 2007. The current version
of related UJI 14945 only applies to crimes committed before July
1, 2007.
Indecent Exposure
[UJI 14970, and new UJI 14970A]
recommends that the Supreme Court amend UJI 14970, and adopt
a new UJI 14970A, to address inadequacies in the current Indecent
Exposure instructions. UJI 14-970 attempts to address both Indecent Exposure and Aggravated Indecent Exposure. However, UJI
14-970 does not accurately list all of the elements of Aggravated
Indecent Exposure. Therefore, the Committee recommends using
two separate instructions so as to accurately reflect the statutory
elements of both crimes.
Tampering With Evidence
[UJI 142241, and new UJI 146019]
recommends that the Supreme Court amend UJI 142241, and
adopt a new UJI 146019, to address the recent Court of Appeals
opinion, State v. Alvarado, 2012-NMCA-089, holding that in order
to secure a third degree conviction, the State must prove beyond a
reasonable doubt that the evidence at issue related to a capital, first
or second degree case. Proposed UJI 14-6019 is a special verdict
form which should be given if the evidence raises a genuine issue
as to determining what crime was involved in the tampering with
evidence.
The proposed rule amendments summarized above may be viewed
in their entirety at the New Mexico Supreme Court website at
www.nmsupremecourt.nmcourts.gov.
CLE AT-A-GLANCE
Continuing Legal Education Guide
M A R C H
2013
On the cutting edge of technology and legal education
CENTER FOR LEGAL EDUCATION
www.nmbarcle.org • 505-797-6020
Legal Career Makeover
How to Refresh and Refocus Your Future
5.0 G
LIVE WEBCAST
Friday, April 12, 2013 • State Bar Center, Albuquerque
available at the standard fee
A.M. and P.M. Sessions
Standard Fee $179
Presenter: Roy S. Ginsburg, JD, Minnesota
Roy Ginsburg coaches lawyers one-on-one throughout the country in the areas of business development, practice
management and career development/transitions to help them achieve individualized practice goals and career
satisfaction. Ginsburg has practiced for more than 30 years in law firms from large to small and in a corporate setting.
As an active solo practitioner with a part-time practice in legal marketing ethics and employment law, he is completely
familiar with the challenges working lawyers face each day of their professional lives. He regularly presents CLE programs
nationwide to bar associations and law firms. www.royginsburg.com
A.M. Session Only
Standard Fee $99
Improve what you’re already doing, refresh your career, or even reinvent your work life. Now is the time to re-examine your
career goals and set the stage for new ones.
8:30 a.m. Registration
9 a.m.
Examine Where You’ve Been and How It’s Been
9:30 a.m. Understand Your Talent and Passion
Consider the Possibilities for What’s Next Along the
Career Path
10:30 a.m. Break
10:45 a.m.Rebalance Your Professional, Personal,
and Community Activities
Get Serious About Creating a Future With Options—
Turning What’s Next Into Action
11:45 a.m. Lunch (provided at the State Bar Center)
Exit Strategies for Retiring Lawyers
P.M. Session Only
2.5 G
2.5 G
Standard Fee $99
Has your law firm planned for the retirement of its leaders and rainmakers? Do you even know what succession planning is? If you are a
small law firm owner or solo practitioner, have you thought about the possibility of selling your law practice? Make sure you know what your
practice is worth, how to locate a potential buyer, and how to negotiate a fair deal.
Once retired, what are you going to do? Retire to something, not from something. Learn ways to achieve a satisfying retirement.
1p.m.
1:30 p.m. 2:30 p.m.
Deciding When to Retire
Considering “of Counsel” Status
Planning for Succession—
Replacing Leaders and Rainmakers
Break
2:45 p.m.
3:45 p.m.
Reasons to Sell a Law Practice
What Practice Areas Are Worth the Most?
Establishing the Value of a Law Practice
Passing Retirement: Stay Relevant
Adjourn
STATE BAR VIDEO REPLAYS
State Bar Center • Albuquerque
APRIL 2
Annual Appellate Practice Institute
6.0 G, 1.0 EP
8 a.m.
$229
APRIL 16
The Basics of Family Law
6.0 G
8:30 a.m.
$209
The Federal Process in New Mexico
6.0 G
8:45 a.m.
$199
The Medicine of Personal Injury
6.0 G
8:45 a.m.
$209
Trial Practice Workshop
4.7 G, 1.0 EP
9 a.m.
$209
Time Mastery for Lawyers
5.5G, 1.0 EP
9 a.m.
$219
2 • CLE At-A-Glance
www.nmbarcle.org
Dissecting Medical Malpractice:
A Litigation Overview for New
and Advanced Practitioners
6.0 G
1.0 EP
LIVE WEBCAST
available at the standard fee
Wednesday, April 24, 2013 • State Bar Center, Albuquerque
Standard Fee: $229
Trial Practice Section Members, Government, Paralegal, Legal Service Providers: $199
Presenters: Gregory W. Chase, Esq., Shaprio Bettinger Chase LLP; and Thomas R. Mack, Esq., Miller Stratvert PA
8 a.m.
Registration
8:30 a.m. I. Assessing and Evaluating the Malpractice Case
A. What Malpractice Is (and Isn’t)
B. The Phone Call / Client Interview / Screening the Case
C. Research
D. Expert Review
E. Liability Theories and Defenses
9:30 a.m. II. Procedural Technicalities: Filing Suit
A. Statutes of limitations
B. Choosing Defendants
C. The Medical Review Commission
D. Receiving Notice of Claim
10:30 a.m. Break
10:45 a.m. III. Discovery—Moving the Case Forward
A. Expert Witnesses
B. The Role of the Expert
C. Written Discovery
D. Depositions
E. Compelling Discovery
11:45 a.m. Lunch
12:45 p.m.IV. Hospital Corporate Liability and Institutional
Negligence
A. Employee Negligence
B. Non-employee Negligence
C. Negligent Credentialing and Supervision
1:45 p.m. Break
2 p.m.
V. Mediation
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3 p.m.
VI. Ethical Traps
A. Conflicting Interests
B. “Confidential” Information
4 p.m.
VII. Prosecution of a Malpractice Case: Trial Pointers
VIII. Defense of a Malpractice Case: Trial Pointers
5 p.m.
Adjourn
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Advance Opinions
From the New Mexico Supreme Court and Court of Appeals
Opinion Number: 2013-NMSC-004
Topic Index:
Appeal and Error: Standard of Review
Civil Procedure: Arbitration; and Summary Judgment
Employment Law: Disciplinary Action; and Employee Grievances
Judgment: Declaratory Judgment
Remedies: Arbitration
JOHN N. HORNE,
Plaintiff-Respondent,
versus
LOS ALAMOS NATIONAL SECURITY, L.L.C.,
GEORGE PETER NANOS, and KEVIN W. JONES,
Defendants-Petitioners.
No. 33,135 (filed January 31, 2013)
ORIGINAL PROCEEDING ON CERTIORARI
STEPHEN D. PFEFFER, District Judge
JEFFREY L. LOWRY
THOMAS A. OUTLER
RODEY, DICKASON, SLOAN,
AKIN & ROBB, P.A.
Albuquerque, New Mexico
for Petitioners
Opinion
Richard C. Bosson, Justice
{1} This case arises from an employee grievance at Los Alamos National Laboratory
(LANL), operated by Los Alamos National
Security, LLC. After succeeding in arbitration, the employee, John Horne, filed a
lawsuit in state district court in 2008, in
which he alleged more expansive claims arising out of the same subject matter covered in
the arbitration agreement. LANL objected,
claiming that it should not have to defend
against claims that either were subject to
arbitration or were waived by the arbitration agreement. Accordingly, we discuss the
consequences that follow when an employee
voluntarily contracts to arbitrate grievances
TIMOTHY LANNON BUTLER
Santa Fe, New Mexico
for Respondent
and what the employee must do to preserve
a subsequent lawsuit if that is his intention.
In this case we side with the district court’s
ruling in favor of LANL, and in so doing,
reverse the Court of Appeals.
BACKGROUND
{2} Horne, a twenty-year laboratory employee, received a formal written reprimand
based on an alleged security infraction at
LANL that concerned a failure to follow
security standards regarding Classified
Removable Electronic Media (CREM).
In 2003, while preparing for a conference,
Horne obtained twelve bar codes with
which to label CREM that he intended
to create. Despite being issued twelve bar
codes, Horne generated only ten items of
CREM. Unknown to Horne, the LANL
classified electronic media custodian entered
http://www.nmcompcomm.us/
all twelve bar codes into the electronic media
tracking system. When Horne returned the
ten CREM items he had created, the media
custodian failed to remove the two unused
bar codes from the tracking system, making
it appear that Horne had generated twelve
items of CREM instead of only ten and was
improperly retaining two.
{3} In July 2004, LANL discovered that
two items of CREM were allegedly missing.
Following an internal audit, LANL learned
that the two extra bar codes associated
with the CREM had been entered into the
tracking system by mistake and that, in fact,
nothing was missing. Despite this finding,
Horne was suspended without pay, received
a written reprimand, as well as a security
infraction for his involvement with the
incident.
{4} Following these events, on January
24, 2005, Horne submitted an internal
laboratory complaint resolution form and
requested a hearing. As grounds for a formal
hearing, Horne selected “Salary decrease,
withholding of salary increase, demotion,
or suspension without pay” and “Retaliation
for using AM 111 or any other policy that
protects employees from retaliation . . . ” on
the complaint resolution form.1 Attached
to this form was Horne’s own statement
capturing his complaint as follows:
This situation has had severe
consequences in my personal life
and has caused irreparable harm
to my reputation and to my ability to advance in the career path
that I had chosen to pursue. The
association of my good name to
the unsubstantiated claims and
unethical actions of Pete Nanos,
Kevin Jones, Mary Hockaday,
Mike Irving, et al.2 has created a
hostile work environment for me
as well as essentially destroying
any hope for future advancement. This shameless attempt to
validate the aforementioned acts
and accusations through official
sanction is not only unethical but
is in violation of AM111, AM112,
and AM729.
1 AM 111 and other polices are LANL’s internal administrative policies.
2 George Peter Nanos, Jr. was the Interim Director of LANL from January 6, 2003 to May 18, 2003. Mr. Nanos became the Director
of LANL on May 19, 2003, and remained in that role until May 15, 2005. In July 2004, Kevin W. Jones was the Deputy Division Leader
for Los Alamos Neutron Science Center (“LANSCE”). On May 23, 2005, Mr. Jones took over as the Division Leader for the Dynamic
Experimentation Division where he managed Horne. The record does not indicate who Mary Hockaday and Mike Irving are.
In his grievance, Horne sought: (1) removal
of the letter of reprimand from his record,
(2) reinstatement of his lost compensation, benefits, and vacation time, and (3)
reimbursement of any fees he incurred. In
the months after submitting his complaint,
from February 2005 to May 2005, Horne
had other negative employment experiences
at LANL. For example, Horne alleged that
one of the LANL directors called him a
“fool” and that another LANL official told
Horne he “needed to prove himself.” All
these negative employment experiences
stemmed from the alleged missing CREM
incident.
{5}More than two years after signing
the complaint resolution form, on May
9, 2007, Horne and LANL entered into
a Formal Hearing Agreement to arbitrate
Horne’s grievances (hereafter “arbitration
agreement”). Just over a month later, on
June 21, 2007, Horne signed an American
Arbitration Association (AAA) demand
form giving notice to LANL that the arbitration agreement was being sent to the
AAA to “commence administration of the
arbitration.”
{6} The arbitration took place on December 11, 2007. The arbitrator characterized
the issue to be arbitrated as whether Horne
had acted reasonably in executing his duties
and whether the discipline LANL imposed
on Horne for the CREM infraction was
“entitled to conclusive deference.” Horne
was completely successful at arbitration. The
arbitrator found that “the decisions to find
an ‘infraction’ on the part of Mr. Horne,
and to administer discipline on that basis
are wholly unreasonable.”
{7} On February 20, 2008, the arbitrator issued his interim award. The award included
a detailed and comprehensive account of the
CREM incident. The arbitrator concluded
that “none of the conclusions of the decision
makers in this matter meet the standard of
objective reasonableness . . .” and “[t]he
decisions are unsupported by any evidence
showing that Mr. Horne was anything other
than a ‘reasonable man’ in his handling of
CREM during October, 2003.” Before issuing his award, the arbitrator cited laboratory
administrative policy, AM 111.16, stating
that “‘[a] hearing officer . . . is limited to
restoring any pay, benefits or rights lost as
a result of the action taken and may, in his
or her discretion, award costs, expenses,
and attorneys fees in favor of the prevailing
party.’”
{8}Ultimately, the arbitrator awarded
Horne “all wages and benefits lost as a result
of discipline in connection with this matter”
as well as attorney’s fees. The arbitrator also
directed LANL “to restore any loss of rights
which Mr. Horne may have sustained as a
result of the unfounded ‘infraction’ and the
adverse personnel action arising from the
report of the infraction.” Apparently satisfied with the award, Horne did not move
to vacate or modify the award under the
New Mexico Uniform Arbitration Act. See
NMSA 1978, §§ 44-7A-24 & -25 (2001)
(permitting a party to petition the court
for modification of an arbitration award on
certain limited grounds).
{9} Nearly ten months later, on December
12, 2008, Horne filed a lawsuit against
LANL and against individual laboratory
employees alleging eight claims. Horne’s
complaint alleged: (1) retaliation under the
New Mexico Fraud Against Taxpayers Act,
(2) breach of contract, (3) breach of implied
covenant of good faith and fair dealing, (4)
intentional infliction of emotional distress,
(5) constructive discharge, (6) tortious interference with existing contractual relations,
(7) civil conspiracy, and in the alternative,
(8) prima facie tort. Horne sought both
compensatory and punitive damages as well
as equitable relief and attorney’s fees.
{10} LANL responded in district court
with a motion to dismiss or in the alternative
for summary judgment. LANL argued that
the claims in Horne’s lawsuit fell within the
scope of the arbitration agreement, observing that the facts and underlying subject
matter of Horne’s arbitration agreement
were substantially the same as the facts and
subject matter alleged in support of Horne’s
lawsuit. LANL argued for dismissal of the
lawsuit because Horne had an obligation
to contest or move to vacate the arbitration
award pursuant to the requirements of the
Uniform Arbitration Act. Persuaded by
LANL’s argument, the district court found
that “Horne entered into an arbitration
agreement that waived his right to seek
judicial relief for the claims set forth in
this lawsuit.” The district court granted
LANL’s motion for summary judgment and
dismissed the case with prejudice. See Rule
1-056 (C) NMRA.
{11} Horne appealed. In a memorandum
opinion, the Court of Appeals reversed the
district court. Horne v. Los Alamos Nat’l Sec.,
No. 29,822, slip. op. at 2 (N.M. Ct. App.
Jul. 5, 2011) (unpublished). The Court of
Appeals held that “[b]ecause LANL has
not shown whether the arbitrator ruled
on the scope of the arbitration agreement,
and because this appears to be a disputed
issue of material fact, we reverse.” Id. In
reversing, the Court of Appeals discussed
res judicata or claim preclusion, concluding
that the district court had failed to make an
independent ruling on the scope of arbitration and whether the lawsuit fell within
it—a question that raises a genuine issue
of material fact. Id. at 2, 15. Accordingly,
summary judgment was improper, and the
Court of Appeals reversed and remanded to
the district court to determine the scope of
the arbitration agreement. Id. at 2, 15-16.
{12}Although we agree with much of
the Court of Appeals’ legal discussion, we
disagree with the result. For the following
reasons, we conclude that Horne—as the
party seeking to litigate despite both an
agreement to arbitrate and an arbitration
in fact—was obliged to obtain a scope-ofarbitration ruling first from the arbitrator.
Because Horne never obtained such a ruling,
the district court correctly awarded summary judgment to LANL.
DISCUSSION
Standard of Review
{13} We apply a de novo standard of review
to orders granting or denying summary
judgment. Summers v. Ardent Health Servs.,
L.L.C., 2011-NMSC-017, ¶ 10, 150 N.M.
123, 257 P.3d 943. “[W]hether the parties
have agreed to arbitrate presents a question
of law, and we review the applicability and
construction of a contractual provision
requiring arbitration de novo.” Cordova v.
World Fin. Corp. of N.M., 2009-NMSC021, ¶ 11, 146 N.M. 256, 208 P.3d 901.
Summary Judgment
{14} In New Mexico, “[s]ummary judgment is appropriate where there are no
genuine issues of material fact and the
movant is entitled to judgment as a matter
of law.” Romero v. Philip Morris Inc., 2010NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d
280 (internal quotation marks and citation
omitted). The party moving for summary
judgment must make a prima facie showing
and come forward with “such evidence as is
sufficient in law to raise a presumption of
fact or establish the fact in question unless
rebutted. The movant need not demonstrate
beyond all possibility that no genuine factual issue existed.” Rivera v. Brazos Lodge
Corp., 111 N.M. 670, 672, 808 P.2d 955,
957 (1991).
{15} Once the movant makes a prima facie showing, the party opposing summary
judgment has the burden “to demonstrate
the existence of specific evidentiary facts
which would require trial on the merits.”
Romero, 2010-NMSC-035, ¶ 10 (internal
quotation marks and citation omitted). “A
party may not simply argue that such [evidentiary] facts might exist, nor may it rest
upon the allegations of the complaint.” Id.
(alteration in original) (internal quotation
marks and citation omitted). Instead, the
“party opposing the summary judgment
motion must adduce evidence to justify a
trial on the issues.” Id. (internal quotation
marks and citation omitted).
Arbitration
{16} As this Court has previously stated,
there is “strong public policy in this state . . .
in favor of resolution of disputes through
arbitration.” Lisanti v. Alamo Title Ins. of
Tex., 2002-NMSC-032, ¶ 17, 132 N.M.
750, 55 P.3d 962 (internal quotation marks
and citation omitted). “When a party
agrees to a non-judicial forum for dispute
resolution, the party should be held to that
agreement.” Id. Additionally, arbitration
agreements are contracts enforceable by the
rules of contract law. See Santa Fe Techs., Inc.
v. Argus Networks, 2002-NMCA-030, ¶ 52,
131 N.M. 772, 42 P.3d 1221. “Courts are
to interpret the provisions of arbitration
agreements by the rules of contract law
and are to apply the plain meaning of the
language utilized, in order to give effect to
the agreements struck by the parties.” Pueblo
of Laguna v. Cillessen & Son, Inc., 101 N.M.
341, 343, 682 P.2d 197, 199 (1984). “The
terms of the [arbitration] agreement define
the scope of the jurisdiction, conditions,
limitations and restrictions on the matters
to be arbitrated.” Christmas v. Cimarron
Realty Co., 98 N.M. 330, 332, 648 P.2d 788,
790 (1982). Finally, under New Mexico’s
Uniform Arbitration Act, “[a]n agreement
contained in a record to submit to arbitration any existing or subsequent controversy
arising between the parties to the agreement
is valid, enforceable and irrevocable except
upon a ground that exists at law or in equity
for the revocation of a contract.” NMSA
1978, § 44-7A-7(a) (2001).
The Parties’ Arbitration Agreement
{17} Horne voluntarily entered into a contractual agreement with LANL to arbitrate
his grievances. To demonstrate the breadth
of that agreement, LANL attached to its
summary judgment motion the Formal Arbitration Agreement, the internal complaint
resolution form, and Horne’s personal statement summarizing his complaint. These
documents provided support for LANL’s
two statements of undisputed material fact
that Horne (1) filed an internal administrative complaint with LANL on January 24,
2005, and (2) entered into an agreement to
arbitrate with LANL on May 9, 2007. Neither party has ever claimed to have revoked
this agreement. See § 44-7A-7(a).
{18}Significantly, the arbitration agreement specified that “[t]he formal [arbitration] hearing will resolve all matters raised in
the complaint that have not been previously
resolved ” and that “[t]he employee agrees
that s/he will not file any administrative or
legal actions regarding the matters raised in
the complaint.” (Emphasis added.)3 According to LANL, when Horne agreed “not [to]
file any administrative or legal actions,”
he waived any right to bring a subsequent
lawsuit in favor of arbitration. Thus, the
only issue for the district court to determine
on summary judgment was whether the
allegations in Horne’s lawsuit were within
the scope of Horne’s arbitration agreement
(“the matters raised in the complaint”).
{19} Responding to the motion for summary judgment, Horne claimed that
LANL had not made a prima facie case for
summary judgment, and thus, he had “no
requirement . . . to make any showing as
to factual issues.” Perhaps anticipating the
risk of such a position, Horne did submit
a response with an accompanying affidavit.
Horne attached to his response the American Arbitration Association Employment
Arbitration Rules Demand for Arbitration
(demand form) that he had signed and
submitted to the AAA as well as the arbitrator’s interim decision following arbitration. Horne is listed as the claimant on the
demand form, effectively notifying LANL
that he was filing his arbitration request with
the AAA. Although Horne was listed as the
claimant on the demand form, he alleged
on summary judgment that LANL actually
prepared the form and he merely signed it.
{20} Horne makes much of this particular
arbitration demand form, arguing that this
was the “controlling element in the scope of
arbitration” and that it “severely narrowed”
the scope of arbitration. The demand form
listed only two issues under the nature of
the dispute: (1) “Was the written reprimand
with a ten day suspension without pay issued to Mr. Horne on December 16, 2004
done in compliance with laboratory policies
and procedures?” and (2) “Was Mr. Horne
retaliated against for having utilized the
IG’s [Inspector General’s] whistleblower
hotline?” On this particular demand form,
a statement at the bottom of the form is
instructive as to its use. The statement reads
that “[t]o begin proceedings, please send
two copies of this demand and the arbitration agreement, with the filing fee as provided
for in the rules, to the AAA. Send the original demand to the respondent.” (Emphasis
added.) As best we can tell, the demand
form is what the parties send, along with a
filing fee and a copy of the actual arbitration
agreement, to the AAA to set the arbitration
process in motion. See American Arbitration
Association, Employment Arbitration Rules
and Mediation Procedures 18 (amended and
effective Nov. 1, 2009), available at http://
www.adr.org/aaa/ShowProperty?nodeId =/
UCM/ADRSTG_004362&revision=latest
released (providing instructions on how to
initiate arbitration and stating that “[t]he [d]
emand shall set forth . . . a brief statement
of the nature of the dispute”). We think it
is unlikely, therefore, that the demand form
alone, as opposed to the arbitration agreement, controlled the scope of the arbitration.
{21} When pressed by the district judge as
to why he had signed this demand form narrowing the issues he could arbitrate, Horne
replied that LANL’s human resources department had told him that this was the way
to begin the arbitration process. Continuing with his response to the judge, Horne
stated that he had asked LANL to “expand
the scope of arbitration” because he wanted
“everything [to be] arbitrated.” According
to Horne, LANL refused to expand the
arbitration, stating “[w]e refuse to change
the contract.” At oral argument before this
Court, LANL confirmed its position, stating
that it “refused to change the contract; . . .
the scope of the arbitration was set, and the
Laboratory refused to expand it.”
{22}Reviewing this procedural history
leading up to arbitration, very little is clear
about what the parties did or did not agree
to arbitrate—in other words, the scope of
the arbitration agreement. Before arbitration
began, Horne apparently viewed the arbitration agreement broadly; LANL viewed it
narrowly. Clearly there was a dispute. The
question is: what was Horne’s obligation at
this point, going into arbitration, to clarify
or attempt to resolve the dispute.
{23} We look first to the arbitration agreement itself and ask whether the parties
contractually agreed to a dispute-resolution
mechanism. The arbitration agreement
specifically provided that “[t]he hearing officer will have exclusive authority to resolve
disputes relating to interpretation and/or
applicability of this Agreement and AM111
except to the extent that such authority is
3 The arbitration agreement also stated that “[t]he employee represents that s/he has not filed any administrative or legal actions
regarding the matters raised in the complaint . . . [and] agrees to withdraw or dismiss any administrative or legal actions that s/he has
filed regarding the matters raised in the complaint.”
specifically reserved in AM111 to the Laboratory or LANL.” (Emphasis added.) Thus,
the arbitration agreement appears to give
the arbitrator authority to resolve disputes
over the interpretation and scope of the
arbitration agreement.
{24}We recognize that a court generally
determines whether “a controversy is subject to an agreement to arbitrate.” Section
44-7A-7(b). When, however, the parties
have “clearly and unmistakably” reserved
an issue to the arbitrator, then the arbitrator
shall proceed to decide it. See AT&T Techs.,
Inc. v. Commc’ns Workers of Am., 475 U.S.
643, 649 (1986); see also Clay v. N.M. Title
Loans, Inc., 2012-NMCA-102, ¶ 10, 288
P.3d 888, 893 (“The Court uses ordinary
state-law principles that govern the formation of contracts to determine whether the
parties clearly and unmistakably agreed to
arbitrate an issue, including arbitrability.”
(internal quotation marks and citation
omitted)).
{25}Having contractually agreed to vest
“exclusive authority” in the arbitrator “to
resolve disputes relating to interpretation
and/or applicability of this Agreement,”
Horne was contractually obliged to take any
such dispute to the arbitrator, at least to attempt a resolution. Yet the record is unclear
what, if anything, Horne did to raise his
concerns with the arbitrator. The summary
judgment record includes only Horne’s
unsupported statements in his response
to LANL’s motion for summary judgment
and Horne’s attached affidavit. The response
and the affidavit are almost identical, with
both documents listing Horne’s allegations
verbatim. These statements are mainly irrelevant to our consideration here because
they reiterate the merits of what happened
during the CREM incident and describe
additional negative employment experiences
Horne suffered as a result.
{26} However, specifically pertaining to the
scope of the arbitration agreement, Horne
alleged in his summary judgment response
that:
[p]rior to the arbitration hearing,
Horne sought to expand the scope
of the hearing to deal completely
with all of the issues raised in his
administrative grievance or, al
ternatively to withdraw from the
arbitration process. LANL refused
to allow expansion of the scope
of the arbitration to meet the requirements of AM-111.324 and to
encompass Horne’s full grievance.
LANL also refused to allow Horne
to withdraw from the arbitration.
At the December 11, 2007, arbitration hearing, Horne withdrew
his IG retaliation claim. Horne
agreed the only issue to be tried
was the policy and procedure violation, objected to the improper
narrow scope of the proceeding,
objected to having had to select
his remedy before having been
provided with relevant documents
and information (until after selection of binding arbitration) and
specifically reserved his rights to
bring other claims outside the
scope of the arbitration.
{27} Horne provided no evidence of how
he “sought to expand the scope” of the
arbitration. It does not appear to have been
raised with the arbitrator, only with LANL.
Horne does not explain why he withdrew
his retaliation claim or how LANL or the
arbitrator responded to his objections.
Horne claims that he “objected to the improper narrow scope of the proceeding” but
does not claim to have sought a ruling from
the arbitrator. The same is true for Horne’s
assertion that he “specifically reserved his
rights” to bring a later lawsuit.
{28} Viewing Horne’s affidavit in its most
favorable light, it appears that Horne did
not raise these scope-of-arbitration issues
with the arbitrator, at least not on the record and not in such a manner as to obtain
a ruling, at a time when something could
have been done about it. To the contrary,
it appears that Horne agreed with LANL,
however reluctantly, to a narrow scope of
arbitration, and then reserved to himself,
unilaterally, the right to go to court. In this
respect, Horne’s decision was ill-advised as
a matter of law.
{29}In his choice between alternative
courses of action, Horne displayed a fatal
misapprehension of the policies underlying
arbitration. If Horne was truly dissatisfied
with the scope of the arbitration agreement or the scope of the issues actually
arbitrated, Horne could have done one of
several things—none of which include filing
a lawsuit a year later on claims arising out
of the same underlying subject matter.
Horne’s Other Options
{30} First, Horne was obligated to object
to the scope of the arbitration agreement
with the arbitrator and not just LANL and
to request that the arbitrator expand the
scope of the arbitration to encompass all of
his grievances. The arbitration agreement
indicates as much. In cases arising in other
contexts, mainly relating to the arbitrator’s
jurisdiction, or the arbitrator’s ability to
decide a particular dispute, courts have
indicated that parties need to make express,
forceful objections to the arbitrator when
they have a dispute.
{31} For example, in Lewis v. Circuit City
Stores, Inc., 500 F.3d 1140, 1148 (10th
Cir. 2007), the court held that a party
had waived his ability to argue that, as a
matter of basic contract law, an arbitration
agreement was unenforceable. In reaching
its decision, the court stated that the party
had proceeded “with arbitration without
placing any objection clearly on the record
prior to or during the arbitration.” Id. The
court noted that the party had only made
a “general complaint” and stated that “[a]
party’s bare statement that he does not want
to arbitrate a dispute is, of course, not a legal
argument or objection, but instead merely
signals ‘buyer’s remorse’ that he agreed at
the outset to arbitrate future disputes.” Id. at
1150. See also First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 946 (1995) (describing how a party was “forcefully objecting”
to the arbitrator’s jurisdiction and noting
the party had filed a “written memorandum
objecting to the arbitrators’ jurisdiction”);
Coady v. Ashcraft & Gerel, 223 F.3d 1, 9
n.10 (1st Cir. 2000) (noting that a party
“consistently and vigorously maintained its
objection to the scope of arbitration”).
{32}Additionally, the 2007 rules of the
AAA are instructive as to how Horne could
have addressed the scope of the arbitration
in terms of the full breadth of his grievances.5 In dealing with waiver of the right
to object and with lack of compliance with
AM 111.32 itself is not in the record. From what we can gather from Horne’s pleadings in the record, a portion of this policy states,
[b]efore the complaint proceeds to formal hearing, the employee must agree to the terms and conditions of a formal hearing by
signing a written agreement that contains [a] copy of the formal complaint along with a statement that the hearing must resolve
all matters raised in the complaint that have not been previously resolved.
(Internal quotation marks omitted.)
5 We recognize that the arbitration agreement specifies that
[t]he parties agree that the hearing will be conducted under the authority of and in accordance with the provisions of AM 111 and the
rules of the organization providing the hearing officer, insofar as the organization’s rules are consistent with AM 111. In the event of a
4
the rules, the AAA rules state that “[a] party
who proceeds with arbitration after knowledge that any provision or requirement of
these rules has not been complied with,
and who fails to state objections thereto in
writing or in a transcribed record, shall be
deemed to have waived the right to object.”
American Arbitration Association supra,
at 35 (emphasis added).6 In discussing the
arbitrator’s jurisdiction, the rules provide
that “[t]he arbitrator shall have the power
to rule on his or her own jurisdiction, including any objections with respect to the
existence, scope or validity of the arbitration
agreement.” Id. at 20.
{33}At oral argument, Horne conceded
to this Court that “no one invoked the
arbitrator’s authority to decide scope.” It
follows that Horne did not expressly, vigorously, consistently, or forcefully object to the
scope of the arbitration, either in writing or
in a transcribed record, or assure that the
arbitrator made the record clear that Horne
objected to the arbitration’s scope. Though
Horne may have asserted such objections
privately to LANL, he needed to present
them publicly on the record to the arbitrator
and obtain a ruling.
{34} It is helpful to consider what might
have happened if Horne had clearly raised
his objections concerning the scope of the
arbitration agreement with the arbitrator.
Had Horne expressly objected to the arbitration’s narrow scope, LANL or the arbitrator
might very well have relied upon the limited
remedial relief available to Horne under
internal LANL regulations referenced in
the arbitration agreement. AM 111.16,
states that “[a] hearing officer . . . is limited
to restoring any pay, benefits or rights lost
as a result of the action taken and may, in
his or her discretion, award costs, expenses,
and attorneys fees in favor of the prevailing
party.”
{35} Assuming that LANL or the arbitrator had relied on this regulation to deny
Horne’s request to expand the scope of the
issues to be arbitrated, then at the very least
the scope of arbitration would have been
determined by the very authority specified
in the contract. LANL’s position, whether or
not its agreement to arbitrate was “limited
to restoring any pay, benefits or rights lost,”
to the exclusion of any other issues or other
relief, would have been placed clearly on
the record. Importantly, after persuading
the arbitrator not to broaden the scope of
arbitration, leaving Horne no choice but to
litigate, LANL would have had a hard time
in court interposing arbitration as a defense
to litigation.
{36}On the other hand, if Horne had
explicitly objected to the scope of the arbitration agreement and clearly requested
and made a record that he wanted to reserve his rights to litigate those matters not
arbitrated, LANL might have been put to a
hard choice. LANL might have changed its
mind, preferring the efficiency that comes
from resolving all disputes in one forum.
We will never know, because Horne never
put the issue squarely to LANL and to the
arbitrator.
{37} Alternatively, Horne could have asked
LANL and the arbitrator to agree to modify
or clarify the arbitration agreement, thereby
agreeing that Horne could either arbitrate
everything or litigate what he could not.
Instead, Horne asserts that he withdrew his
retaliation claim and reserved his right to
bring other claims to court outside the scope
of arbitration. Again, there is no evidence
in the record, beyond Horne’s assertions, of
how this happened or whether LANL agreed
to this, but it would appear not. Instead,
Horne appears to have acted unilaterally. See
Abondolo v. Jerry WWHS Co., 829 F. Supp.
2d 120, 128 (E.D.N.Y. 2011) (describing
what a party needs to do when challenging
the arbitrator’s ability to decide a dispute,
stating that “[a] simple statement of reservation of rights is not enough, however,
but rather a forceful objection is necessary
to indicate an unwillingness to submit to
arbitration” (internal quotation marks and
citation omitted)).
{38} Neither party had the authority, acting
alone, to limit the scope of arbitration. It
may well be, as Horne intimates, that LANL
wrongfully narrowed the scope of arbitration. But as we have said, in that event it
was incumbent on Horne to make his case
to the arbitrator. “When the parties agree
to arbitrate any potential claims or disputes
arising out of their relationships by contract
or otherwise, the arbitration agreement will
be given broad interpretation unless the parties themselves limit arbitration to specific
areas or matters.” K.L. House Constr. Co. v.
City of Albuquerque, 91 N.M. 492, 494, 576
P.2d 752, 754 (1978) (emphasis added); accord UJI 13-817 NMRA (stating that there
must be mutual assent of both parties in
order to effectively modify a contract); see
also Elliott & Frantz, Inc. v. Ingersoll-Rand
Co., 457 F.3d 312, 322 (3d Cir. 2006) (“[U]
nilateral statements or actions made after an
agreement has been reached or added to a
completed agreement clearly do not serve
to modify the original terms of a contract.”
(internal quotation marks and citation omitted)).
{39} Assuming Horne presented his scopeof arbitration dispute to the arbitrator and he
remained unsatisfied with what the parties
arbitrated, he could have moved to contest
the arbitration award. In United Technology
& Resources Inc., v. Dar Al Islam, 115 N.M.
1, 2, 4, 846 P.2d 307, 308, 310 (1993),
we held that a party who did not contest
an arbitration award within the ninety-day
statutory framework was barred from challenging an arbitrator’s ruling. In that case,
the arbitration panel had determined that
it lacked authority to award attorney’s fees
to the prevailing party. Id. at 2, 846 P.2d
at 308. A year after the arbitration, one of
the parties moved to confirm the award in
the district court. Id. at 3, 846 P.2d at 309.
We stated that “[b]y failing to file a motion
to modify or correct within ninety days
after delivery of the arbitrator’s award [the
prevailing party] waived its right to present
its substantive defenses to confirmation of
the award.” Id. at 5, 846 P.2d at 311.
{40}Additionally, before the arbitration
occurred, Horne might have sought a declaratory judgment from the district court
to clarify his rights under the contractual
arbitration agreement. Under New Mexico’s
Declaratory Judgment Act, “Any person
interested under a . . . written contract
or other writings constituting a contract
. . . may have determined any question of
construction or validity arising under the
instrument, . . . contract . . . and obtain a
declaration of rights, status or other legal
relations thereunder.” NMSA 1978, § 446-4 (1975). Moreover, under this same act,
“A contract may be construed either before
or after there has been a breach thereof.”
NMSA 1978, § 44-6-5 (1975). We do,
however, recognize that under New Mexico’s
Uniform Arbitration Act, a court’s ability to
grant provisional remedies is limited once
an arbitrator is appointed and authorized
to act. See NMSA 1978, § 44-7A-9(b)(2)
(2001). If the arbitrator is appointed and
conflict between AM 111 and the rules of the organization, AM 111 will take precedence.
Although we do not know what AM 111 specifically states and whether LANL’s internal rules would take precedence over these specific
portions of the AAA rules, the AAA rules are nonetheless useful in providing guidance to Horne as to what he should have done to properly
raise his issues regarding the scope of the arbitration.
6 We note that these specific portions of the AAA rules remained unchanged from the 2007 to 2009 version of the rules.
authorized to act, “a party to an arbitration
proceeding may move the court for a provisional remedy only if the . . . arbitrator is not
able to act timely or the arbitrator cannot
provide an adequate remedy.” Id.
{41} Courts take differing perspectives as
to whether parties subject to arbitration
agreements can seek a declaratory judgment regarding their arbitration agreement. “An action may be brought under
a declaratory judgment act to determine
questions arising out of an arbitration
clause.” 21 Richard A. Lord, Williston
on Contracts: A Treatise on the Law of
Contracts, § 57:26, at 242 (4th ed. 2001).
Additionally, “[a] declaratory judgment
may be granted to determine . . . whether
a matter in dispute comes within the scope
of an arbitration agreement.” Id. at 242-43.
Some courts believe that seeking a declaratory judgment prior to arbitration would
“thwart the legislative purpose of arbitration as an informal, expeditious, and final
resolution of disputes.” Soc’y of Am. Foresters
v. Renewable Natural Res. Found., 689 A.2d
662, 669 (Md. Ct. Spec. App. 1997). Others
believe that “[a]rbitration is simply a matter
of contract between the parties, . . . and a
circuit court may construe a party’s right
under a contract by way of a declaratory
judgment.” Morton v. Polivchak, 931 So. 2d
935, 940 (Fla. Dist. Ct. App. 2006).
{42}We need not decide here what role
declaratory judgments have when parties
enter arbitration agreements. It suffices to
say that if the district court had issued a
declaratory judgment specifying the scope of
Horne’s contractual rights under the arbitration agreement, it is unlikely this case would
be here today. The district court could have
declared whether Horne and LANL were
going to arbitrate a broad or narrow set of
issues, and the declaratory judgment would
have “serve[d] a useful purpose in clarifying
and settling the legal relations between the
parties and [would have] afford[ed] relief
from uncertainty, insecurity[,] controversy
. . . [, and] serious financial damage.” Lehigh
Coal & Navigation Co. v. Cent. R. R. of N.J.,
33 F. Supp. 362, 366 (E.D. Pa 1940).
{43}Horne might have had still another
option. If Horne had elected not to participate in arbitration because LANL refused to
agree to address all of his grievances, then he
could have filed his lawsuit before the arbitration took place. No doubt, LANL would
have asserted arbitration as a defense. At that
point, the court could have conducted its
“initial screening process . . . to determine
in general terms whether the parties have
agreed that the subject matter under dispute
should be submitted to arbitration.” K. L.
House Constr. Co. v. City of Albuquerque,
91 N.M. 492, 494, 576 P.2d 752, 754
(1978). “Once it appears that there is, or
is not a reasonable relationship between
the subject matter of the dispute and the
general subject matter of the underlying
contract, the court’s inquiry is ended.” Id.
Presumably then, there would have been a
clear determination about the scope of the
issues Horne and LANL would arbitrate and
whether Horne could later litigate issues not
subject to arbitration. United Steelworkers of
Am. v. Warrior & Gulf Navigation Co., 363
U.S. 574, 582 (1960) (“[A]rbitration is a
matter of contract and a party cannot be
required to submit to arbitration any dispute
which he has not agreed so to submit.)”.
{44}Regrettably, Horne chose the one
course of action we cannot endorse. He
chose to arbitrate some issues, while unilaterally claiming to withhold others for litigation, without submitting the dispute to the
arbitrator for guidance. See Town of Silver
City v. Garcia, 115 N.M. 628, 632, 857
P.2d 28, 32 ( 1993) (“[P]arties who agree
to have their disputes resolved through arbitration cannot later relitigate the merits of
the arbitrated issues in the district court.”).
Arbitration is supposed to function as a costeffective and efficient resolution of disputes,
and if necessary, courts are to have a limited
role in interpreting arbitration awards. See
id. Obviously, that did not happen here.
{45}After considering all of the relevant
documents and options available to contest
the scope of the arbitration agreement, both
before and after the arbitration occurred, we
conclude that LANL properly moved for
summary judgment and the district court
appropriately granted judgment in LANL’s
favor. See Clay v. N.M. Title Loans, Inc.,
2012-NMCA-102, ¶ 20, 288 P.3d 888 (“A
party may be assumed to have intended to
arbitrate issues that are closely related to
those governed by the agreement itself, but
not those that are unrelated to the agreement, out of the context of the agreement,
or outrageous and unforeseeable.”).
{46} Finally, Horne argues that “[t]he facts,
issues, claims, and time frame of events set
out in [his] civil complaint . . . manifestly
exceed those set out in his [administrative]
grievance” and therefore are not within the
scope of the arbitration agreement. As we
stated earlier, very little was clear about what
the parties did and did not agree to arbitrate.
As a general matter, arbitration agreements
“are drafted with broad strokes and, as a
result, require broad interpretation.” Santa
Fe Techs., Inc. v. Argus Networks, Inc., 2002NMCA-030, ¶ 55, 131 N.M. 772, 42 P.3d
1221. When parties voluntarily contract
to arbitrate their grievances, “[a]n order to
arbitrate the particular grievance should not
be denied unless it may be said with positive
assurance that the arbitration clause is not
susceptible of an interpretation that covers
the asserted dispute.” Heimann v. KinderMorgan CO2 Co., 2006-NMCA-127, ¶ 13,
140 N.M. 552, 144 P.3d 111 (alteration in
original) (quoting AT&T Techs., 475 U.S.
at 650).
{47} We conclude that Horne’s lawsuit was
just another way of repackaging the claims
he contractually agreed to arbitrate. All the
claims within Horne’s lawsuit stemmed
from the same underlying conduct—the
CREM incident and the consequences
Horne suffered because of it. Therefore,
absent anything in the record to support a
conclusion that the parties modified the arbitration agreement, we think that Horne’s
argument that the claims in his civil lawsuit
were not within the scope of his arbitration
agreement are unpersuasive.
CONCLUSION
{48} For the foregoing reasons, we reverse
the Court of Appeals and reinstate the district court’s grant of summary judgment in
LANL’s favor.
{49} IT IS SO ORDERED.
RICHARD C. BOSSON,
Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice
Opinion Number: 2013-NMSC-005
Topic Index:
Appeal and Error: Remand; and Standard of Review
Civil Procedure: Summary Judgment
Government: Highways
Statutes: Interpretation; and Legislative Intent
Torts: Immunity; Loss of Consortium; Negligence; Tort Claims Act;
and Wrongful Death
ESTELA MARTINEZ and LILA SALAZAR, individually
and as co-personal representatives of the
ESTATE OF NATALIE MARTINEZ ESPINOZA,
ISAAC MARTINEZ, and ESTELA MARTINEZ, individually
and as co-personal representatives of the
ESTATE OF AMELIA D. MARTINEZ, LILA SALAZAR and DONNA SALAZAR,
as co-personal representatives of the
ESTATES OF DONALD D. ESPINOZA, TONY ESPINOZA,
and EDNA ESPINOZA, and ANTHONY MARK ESPINOZA, individually,
Plaintiffs-Petitioners,
versus
NEW MEXICO DEPARTMENT OF TRANSPORTATION,
Defendant-Respondent.
No. 33,083 (filed January 31, 2013)
ORIGINAL PROCEEDING ON CERTIORARI
TIMOTHY L. GARCIA, District Judge
LINDA G. HEMPHILL
PAUL W. GRACE
HEMPHILL & GRACE, P.C.
CHRISTA M. OKON
THE OKON LAW FIRM
for Petitioners
MARY KAREN KILGORE
EVELYN ANNE PEYTON
CUDDY & MCCARTHY, L.L.P.
for Respondent
Opinion
Richard C. Bosson, Justice
{1}New Mexico State Road 502 (NM
502), a winding mountainous roadway leading to and from Los Alamos, New Mexico,
was designed partially with and partially
without center lane barriers to prevent crossover collisions. Barriers were not installed
at the site of the cross-over collision in this
case. The New Mexico Department of
MICHAEL B. BROWDE
for Amicus Curiae
New Mexico Trial
Lawyers Association
GARY K. KING
Attorney General
MATTHEW ERIC JACKSON
Assistant Attorney General
for Amicus Curiae
New Mexico Attorney General
Gary K. King
Transportation (DOT), which has legal responsibility to maintain NM 502, was sued
for negligently failing to remedy a dangerous
condition when it chose not to replace the
open center lane with cross-over barriers,
after it was allegedly put on notice of that
risk by post-construction accidents and
other events. Our Court of Appeals held
as a matter of law that DOT was immune
from suit for such negligence, a decision
which we reverse as being at odds with our
jurisprudence. We also hold that the district
court unduly restricted the evidence offered
to show that DOT had received notice of
the danger at this location and the need for
remedial action. Accordingly, we reverse
and remand for a new trial.
BACKGROUND
{2} On December 9, 2004, Amelia Martinez and Donald Espinoza were driving west
on NM 502 toward Los Alamos to buy a car.
Amelia, eight and a half months pregnant
at the time, was driving and Donald was in
the passenger seat. Tragically, they did not
make their destination.
{3} At the same time, Anthony Griego was
driving east on NM 502 away from Los
Alamos. Griego was weaving in and out
of traffic, passing cars in both the left- and
right-hand lanes. In an attempt to pass
another car, Griego entered the center turn
lane, a two-way, turn-only lane near mile
marker 9. Griego lost control of his vehicle
in the center turn lane, which was covered in
red crushed cinder commonly used in New
Mexico during snow-clearing operations.
He skidded into oncoming traffic, colliding head-on with Amelia’s vehicle. No one
from either vehicle survived the crash. A
toxicology report later showed that Griego
had both drugs and alcohol in his system at
the time of the collision.
{4}The parents of both Amelia and
Donald, as well as Donald’s grandparents,
(Plaintiffs) filed the present suit against
DOT, claiming wrongful death and loss
of consortium. Plaintiffs alleged that the
failure to construct a center barrier on this
section of NM 502 “created or permitted a dangerous condition to exist, [and]
constitutes a failure to maintain a road
in a reasonably safe condition for which
immunity has been waived under the Tort
Claims Act.” In addition, DOT “permitted
a dangerous condition by allowing sand or
gravel to remain in the [center lane].”
{5} DOT had redesigned NM 502 in the
late 1980s. The redesign was necessary to
accommodate increased traffic flow and to
make the road safer “due to the sensitive
materials which may be taken to and from
the Los Alamos National Laboratory,” presumably a reference to transporting nuclear
waste. As part of the redesign, an additional
lane of travel was added in each direction.
The redesign included a center turn lane
between mile markers 8 and 10 where the
cross-over collision occurred, although with
the exception of a gas station, there are no
developed roadways upon which to turn.
West of mile marker 8, the eastbound and
westbound lanes of traffic are divided by a
concrete median barrier known as a “Jersey
barrier.” Between mile markers 8 and 10,
including the collision site, there is no Jersey
barrier.
{6} Before trial, DOT filed a motion for
partial summary judgment regarding waiver
of immunity under the New Mexico Tort
Claims Act (the Act). As will be discussed
in more detail, the Act permits suits against
DOT for negligent “maintenance” of a roadway, but not for negligent “design.” NMSA
1978, § 41-4-11 (1991). The summaryjudgment motion asked the district court to
rule as a matter of law that DOT’s decision
not to install a center barrier in the area
where this collision occurred was one of
design, not maintenance. The district court
granted the motion and, as such, prevented
Plaintiffs from going to trial under their
theory that a failure to install a center barrier on this particular stretch of roadway
constituted negligent maintenance. The
ruling thus limited Plaintiffs’ claim at trial to
proving that DOT was negligent for failing
to remove the red cinder left from snowclearing operations that had accumulated
in the center turn lane, a proximate cause
of the collision.
{7} At trial, Plaintiffs sought to introduce
evidence of other cross-median, fatal collisions that had occurred between mile
markers 8 and 10, the stretch of road with
the center turn lane at issue in this case.
Between 1998 and the time of this collision,
five other motorists had died in four separate
incidents involving cross-median collisions
between mile markers 8 and 10. The district
court excluded evidence of these fatalities.
{8} In addition to evidence of other collisions, Plaintiffs attempted unsuccessfully to
introduce two types of evidence: one, that
citizens had previously filed complaints with
DOT regarding the lack of a center barrier,
and two, that DOT had installed a center
barrier on other sections of the road. The
court limited the evidence at trial to the
scene of the collision and evidence regarding
red cinder in the center turn lane.
{9}So restricted, Plaintiffs proceeded to
trial where the jury returned a verdict for
DOT. The Court of Appeals affirmed the
district court in total. Martinez v. N.M.
Dep’t of Transp., 2011-NMCA-082, 150
N.M. 204, 258 P.3d 483. The Court of
Appeals focused on the permanent nature of
Jersey barriers, describing them as “concrete,
dense structures, the placement of which is
not simple or uncomplicated.” Id. ¶ 18.
According to the Court of Appeals, New
Mexico jurisprudence “hinged on the difference between guiding traffic and designing
permanent attributes of a road itself.” Id. ¶
17. Ultimately, the Court of Appeals held
“that erection of permanent barriers as part
of a road constitutes a matter of road design”
and not maintenance. Id. We granted certiorari to consider important legal issues—both
for the motoring public and for DOT in
discharging its responsibility to ensure the
safety of New Mexico’s highways—that arise
from a proper interpretation and application
of the Tort Claims Act.
DISCUSSION
Standard of Review
{10} As we interpret the Act, we are reminded that statutory construction is a
matter of law which is our responsibility
to review de novo. See Rutherford v. Chaves
Cnty., 2003-NMSC-010, ¶ 8, 133 N.M.
756, 69 P.3d 1199 (“The standard of review
for determining whether governmental immunity under the [Act] bars a tort claim is a
question of law which we review de novo.”).
Tort Claims Act
{11} The Tort Claims Act, passed by the
Legislature in 1976, affirmed the sovereign
immunity of the State from tort claims generally, subject to certain frequently discussed
exceptions. NMSA 1978, § 41-4-2 (1976).
The Act was intended to balance “the inherently unfair and inequitable results which
occur in the strict application of the doctrine
of sovereign immunity” with the observation
that “the area within which the government has the power to act for the public
good is almost without limit, and therefore
government should not have the duty to do
everything that might be done.” Section 414-2(A). Accordingly, the Legislature declared
it “to be the public policy of New Mexico that
governmental entities and public employees
shall only be liable within the limitations of
the Tort Claims Act and in accordance with
the principles established in that act.” Id.
{12} Of the exceptions explicitly enumerated in the Act, Section 41-4-11 waives
immunity for certain actions regarding
highways. The statute reads as follows:
A. The immunity granted pursuant to Subsection A of Section 414-4 NMSA 1978 does not apply to
liability for damages resulting from
bodily injury, wrongful death or
property damage caused by the negligence of public employees while
acting within the scope of their
duties during the construction, and
in subsequent maintenance of any
bridge, culvert, highway, roadway,
street, alley, sidewalk or parking
area.
B. The liability for which immunity has been waived pursuant
to Subsection A of this section shall
not include liability for damages
caused by:
(1)a defect in plan or design
of any bridge, culvert, highway,
roadway, street, alley, sidewalk or
parking area;
(2)the failure to construct or
reconstruct any bridge, culvert,
highway, roadway, street, alley,
sidewalk or parking area
....
Id. (emphasis added). The central issue in
this case is whether DOT’s decision not to
install a post-construction center barrier
at mile marker 9 on NM 502, after being
alerted of a potentially dangerous condition
at that general location, is a matter envisioned by the Act as highway “maintenance,”
for which sovereign immunity is waived, or
highway “design,” for which it is not.
The Court of Appeals’ Narrow Definition
of Maintenance
{13} When the Act was originally passed
in 1976, it did not define the term “maintenance.” See 1976 N.M. Laws, ch. 58, §
3. Thus, it was up to New Mexico courts
to determine what the Legislature intended
that term to mean. Through the years,
maintenance has been interpreted very
broadly. Romero v. State, 112 N.M. 291,
296, 814 P.2d 1019, 1024 (Ct. App. 1991),
rev’d in part on other grounds by Romero v.
State, 112 N.M. 332, 333, 335, 815 P.2d
628, 629, 631 (1991), abrogated on other
grounds by Dunleavy v. Miller, 116 N.M.
353, 356 n.1, 862 P.3d 1212, 1215 n.1
(1993).
{14} Perhaps the broadest interpretation of
the term is found in this Court’s opinion in
Miller v. New Mexico Department of Transportation, 106 N.M. 253, 741 P.2d 1374
(1987), superseded by statute, NMSA 1978,
Section 41-4-3(E)(1) (1995) (pursuant to
1991 amendment, 1991 N.M. Laws, ch.
205, § 1). In Miller, this Court held that the
issuance of oversize vehicle permits could
constitute highway maintenance for which
DOT could be sued under the Act. Id. at
255, 741 P.2d at 1376. The Legislature
responded by amending the Act, providing
its first definition of maintenance and effectively overruling Miller. See Rutherford,
2003-NMSC-010, ¶ 21.
{15}Though the Legislature repudiated
our holding in Miller, it did so narrowly.
Rutherford, 2003-NMSC-010, ¶ 21. The
Legislature added a definition of what
should not be considered maintenance:
“maintenance” does not include:
(1) conduct involved in the
issuance of a permit, driver’s
license or other official authorization to use the roads or highways of
the state in a particular manner; or
(2) an activity or event
relating to a public building or
housing project that was not foreseeable.
NMSA 1978, § 41-4-3(E) (2009). Thirteen years later, when this Court analyzed
the Miller amendment in Rutherford, we
concluded that “the legislative amendment
was narrow, calculated, and [it] addressed
the particular legal conclusion in Miller.”
2003-NMSC-010, ¶ 21. Because the matter before us does not pertain to permits or
anything else discussed in the Miller amendment, that statutory definition of maintenance offers little help in this particular case.
{16}The Rutherford opinion was our last
occasion to interpret the meaning of maintenance; the importance of its holding should
not be underestimated. There, the plaintiff
sued DOT after attempting to drive his
vehicle across a flooded arroyo. Id. ¶ 3. The
road was designed to pass through the arroyo
instead of passing over it by bridge, and signs
were posted at the crossing warning motorists to “‘WATCH FOR WATER.’” Id. ¶
2. Normally, when the arroyo flooded, the
Chaves County Road Department would
close the crossing using portable barricades
which prevented motorists from driving into
the flood waters. Id. Before the barricades
could be put in place, however, Rutherford
attempted to cross the flooded arroyo, and
as a result his wife, their two children, and
another child drowned. Id. ¶ 3.
{17}This Court had to decide whether
placing barricades to stop motorists from
crossing the arroyo—and more importantly
the County’s lack of a prompt response to
adverse weather conditions that threatened
the motoring public—constituted roadway
maintenance under the Act. Id. ¶ 10. In
analyzing a long line of New Mexico cases,
we reaffirmed “that traffic controls constitute
maintenance activities under the [Act].” Id.
¶ 9. See, e.g., Pollock v. State Highway &
Transp. Dep’t, 1999-NMCA-083, 127 N.M.
521, 984 P.2d 768 (holding that placing a
“Do Not Enter” sign was maintenance);
Rickerson v. State of N.M. & City of Roswell,
94 N.M. 473, 612 P.2d 703 (Ct. App. 1980)
(holding that replacing a stop sign with a
traffic signal was maintenance).
{18}Much as DOT does today, Chaves
County argued for a narrower, more restrictive definition of maintenance based on the
Miller amendment. 2003-NMSC-010,
¶ 18. We recognized that the Legislature
repudiated Miller’s holding. Id. ¶ 21. But,
we concluded that the Legislature did nothing to narrow the definition of maintenance
outside of the context of our opinion in
Miller. Id. Accordingly, we rejected then,
as we do today, any suggestion that the
State’s duty to maintain roadways in a safe
condition for the benefit of the public has
been diluted or narrowed beyond the text
of the 1991 legislative amendment. Id.
{19}Specifically, we said in Rutherford
that maintenance was not confined to mere
“‘upkeep and repair,’” which is vital to our
review of the Court of Appeals’ opinion in
the instant case. Id. We stated, “In 1991,
when considering the definition of ‘maintenance,’ the Legislature chose not to limit
the meaning of the term ‘maintenance’ to
‘upkeep and repair.’ Notably, the Legislature
also did not define maintenance to exclude
traffic control.” Id.
{20}Despite what we said in Rutherford,
the Court of Appeals’ opinion in the present
case closely aligned the meaning of maintenance with upkeep and repair. Martinez,
2011-NMCA-082, ¶ 11. Relying on one
of its prior opinions, the Court of Appeals
observed that “[i]n Villanueva, we reaffirmed that ‘maintenance’ of a road involves
‘upkeep and repair,’ and our view that installations of structural elements are matters for
which design immunity is conferred.” Id.
(alteration omitted) (quoting Villanueva
v. City of Tucumcari, 1998-NMCA-138,
¶ 8, 125 N.M. 762, 965 P.2d 346). The
proper scope of the term maintenance in a
case such as this was previously articulated
by the Court of Appeals in Jacobo v. City
of Albuquerque, 2005-NMCA-105, 138
N.M. 184, 118 P.3d 189, where the Court
accurately quoted our specific holding from
Rutherford—“New Mexico cases have held
that the term ‘maintenance’ is not limited to
‘upkeep and repair’ but that ‘the identification and remediation of roadway hazards
constitutes highway maintenance under
Section 41-4-11 of the [Act].’” Id. ¶ 15
(quoting Rutherford, 2003-NMSC-010, ¶¶
21, 25). We reject, as we did in Rutherford,
any statutory construction that would limit
the word maintenance to upkeep and repair.
{21}We emphasize, as we will discuss
again in the coming paragraphs, that the
term maintenance requires a reasonable
response to a known dangerous condition
on a roadway. When the reasonableness of
that response pertains to traffic controls,
it is not measured just by size or weight,
permanence or mobility, whether the defect
is a structural element or is more transitory
in nature.
Remediation Measures Are Maintenance
{22}In this case, the Court of Appeals
noted that “[e]rected Jersey barriers are
concrete, dense structures, the placement
of which is not simple or uncomplicated,”
and distinguished the barriers at issue in
Rutherford because they could be “placed
on and removed from the road as needed.”
Martinez, 2011-NMCA-082, ¶ 18. In so
doing, the Court of Appeals was led astray
by DOT.
{23}The fallacy of this argument is
straightforward. A traffic signal is also
a permanent and substantial feature on
a roadway. Once placed, a traffic signal
is generally not removed and becomes a
permanent fixture of the intersection. The
placement of a traffic signal “is not simple
or uncomplicated.” Id. Traffic studies
must be conducted over a period of time
to determine the appropriateness of such
a change, not to mention the construction
which ultimately results in a permanent
“concrete, dense structure[].” Id. Yet the
Court of Appeals acknowledged that installing a traffic signal constitutes maintenance
under the Act. Id. ¶ 15.
{24}Plaintiffs further argued that other,
less substantial remedial measures could
have prevented the collision in this case. In
addition to Jersey barriers, Plaintiffs argued
that the collision could have been prevented
“by installing cable barriers or by erecting
a concrete or grassy island.” The Court of
Appeals opinion does not address these additional remedial measures. With the opinion
focused, at least in part, on substantiality, we
are left to wonder whether cable barriers are
substantial enough to be considered design
under the Court of Appeals’ analysis.
{25} Rather than focusing on what DOT
was being asked to do—remedy a dangerous condition—the Court of Appeals was
distracted by the sheer size or weight of
the proposed remedy, a distinction absent
from the text of the Act. The Court focused
more on the distinguishing characteristics
of a center barrier versus a stoplight versus
a sign warning of animals crossing, rather
than the overarching principle enunciated in
both the Act and in our case law—the need
for action to remedy a dangerous condition
on a roadway.
{26}The duty to maintain a roadway
subsumes within it a duty to remediate a
known, dangerous condition, regardless
of whether the source of that danger can
be traced back to a design feature. If not
our specific holding in Rutherford, it is at
the very least a strong inference from what
we said in that opinion. Its roots in New
Mexico jurisprudence can be traced back
as far back as 1980. Although these prior
cases do not have the same explicit holding
as Rutherford, implicit in them is the legal
conclusion that the duty to remedy a dangerous condition falls within the intended
meaning of maintenance under the Act. We
discuss a selection of these cases to illustrate
the point.
{27} Rickerson was the earliest of these
cases. The plaintiff argued that a particular
intersection was dangerous due to a lack of
sufficient traffic controls, such as a stoplight.
94 N.M. at 475, 612 P.2d at 705. The State
argued that it was immune from suit because
the layout of the intersection was a design
issue; the intersection as designed did not
call for a stoplight. Id. The Court of Appeals held that immunity was waived under
both Section 41-4-11(A) and NMSA 1978,
Section 41-4-6 (2007) (waiving immunity
for negligent operation of equipment), and
accordingly, the question of the State’s negligence should go to a jury. Rickerson, 94
N.M. at 475-76, 612 P.2d at 705-06. More
important to our analysis in this case than
the holding is Judge Sutin’s special concurrence.
{28}In his special concurrence, Judge
Sutin makes clear that the duty to correct
a dangerous condition, even if it resulted
from the original design, falls under the
maintenance waiver of the Act. Specifically,
he notes that the original design of the road,
in that case “[t]he presence of stop signs
[rather than a stop light] to control traffic on
a street before entering an intersection does
not absolve a government entity of liability
where a dangerous condition has been created.” Id. at 477, 612 P.2d at 707 (Sutin,
J., specially concurring). In addition, Judge
Sutin opined,
What is meant by “maintenance
of a street”? To me, it is logical to
conclude that, since “defect in plan
or design of a street” appears in the
same section with “maintenance of
a street,” “maintenance of a street”
includes within its perimeter or
scope, an improvement of the
“plan or design.”
Id. at 479, 612 P.2d at 709 (Sutin, J., specially concurring). We agree.
{29}Two years later, a unanimous panel
of the Court of Appeals endorsed Judge
Sutin’s belief that the duty to mitigate a
dangerous condition falls under the state’s
maintenance obligations for the purposes of
the Act. In a case very similar to Rickerson,
the Court of Appeals once again ruled that
the state was not immune under the Act for
failing to install traffic signals and signs. See
Blackburn v. State, 98 N.M. 34, 36, 644
P.2d 548, 550 (Ct. App. 1982).
{30}In Blackburn, the discussion of “dangerous conditions” arose in the context of a
dispute over jury instructions. The plaintiff
complained of the following jury instruc-
tion:
Plaintiff’s cause of action against
defendants, State of New Mexico,
State Highway Department and
State Engineer, is based upon
and must meet the requirements
of the law relating to the liability
of a public entity for a dangerous
condition of public property.
Before the plaintiff may be
entitled to your verdict under this
law, against defendants, State of
New Mexico, State Highway Department and State Engineer, you
must find from a preponderance
of the evidence:
First: That Intersection at
State Road 85, State Road 6 in
Los Lunas, New Mexico was in a
dangerous condition on April 14,
1979;
Second: That the injury of
which plaintiff complains was
proximately caused by the dangerous condition;
Third: That the injury occurred
in a way which was reasonably
foreseeable as a consequence of
the dangerous condition of the
property; and
Fourth: That either:
(a) The dangerous condition
was created by a negligent or
wrongful act or omission of an
employee of the defendants, State
of New Mexico, State Highway
Department and State Engineer,
acting within the scope of his
employment, or
(b) The defendants, State of
New Mexico, State Highway Department and State Engineer, had
actual or constructive notice of the
dangerous condition a sufficient
time prior to the time of the accident so that measures could have
been taken to protect against the
dangerous condition.
Id. at 37, 644 P.2d at 551.
{31} The jury instruction explicitly defines
the duty owed by the state as the duty to
remedy a dangerous condition. The Court
of Appeals concluded that this instruction
“fairly present[s] the applicable law” and
that the instruction “was a correct statement
of New Mexico law.” Id. Implicit in this
reasoning is that a duty to remedy a dangerous condition is a maintenance obligation
for which immunity is waived under the
Act.
{32} Subsequently, in Ryan v. New Mexico
State Highway & Transportation Department,
the Court of Appeals held that the failure to
install a sign warning of animal crossings fell
under the state’s maintenance obligations,
and therefore immunity was waived. See
1998-NMCA-116, ¶ 5, 125 N.M. 588, 964
P.2d 149. It was the duty to mitigate the
dangerous condition—warn motorists of
the possibility of animals in the roadway—
that triggered the need for maintenance and
thus the waiver of sovereign immunity. Id.
{33} Thus, the duty to remedy a dangerous condition on New Mexico highways
is nothing new under New Mexico law
generally and under the Tort Claims Act
specifically. See Castillo v. Cnty. of Santa Fe,
107 N.M. 204, 206-07, 755 P.2d 48, 50-51
(1988) (recognizing that the duty to remedy
a dangerous situation constitutes maintenance under Section 41-4-6, which waives
immunity for operation or maintenance of
buildings). A dangerous condition can result from the original design of the highway
as long as the state has sufficient notice of
the danger and the need for remediation.
Rickerson, 94 N.M. at 475, 612 P.2d at 705
(the dangerous condition resulted from the
failure to replace a stop sign with a traffic
signal). It can be the result of a failure to
maintain safety devices already in place.
Lerma ex rel. Lerma v. State Highway Dep’t,
117 N.M. 782, 784, 877 P.2d 1085, 1087
(1994) (the dangerous condition arose
from the failure to properly construct and
maintain a fence along a highway). The
dangerous condition can also result from
an inherent feature of the roadway. Ryan,
1998-NMCA-116, ¶ 16 (the dangerous
condition was the result of animals migrating across the roadway). In each of these
situations, the result is the same. As we held
in Rutherford, “procedures for identifying
hazards on roadways and the timeliness
of minimizing or eliminating the risk of
injury to the motoring public from those
hazards constitute maintenance activities
for which immunity is waived under the
[Act].” 2003-NMSC-010, ¶ 7.
{34}Plaintiffs make the same argument
in this case. Despite DOT’s immunity for
the initial design or redesign of NM 502,
notice of a dangerous condition—whether
based on the original design or some
other intervening characteristic—triggers
a maintenance obligation for which DOT
can be held legally responsible under the
Act. Whether this obligation requires
a permanent solution, such as a traffic
signal or a center barrier, or a temporary
one, such as the moveable barriers in
Rutherford, the maintenance obligation of
reasonable care remains the same. And the
reasonableness of that response to a known
danger—whether with a temporary barrier
or a permanent one—remains in the good
hands of the jury to resolve.
An Endless Immunity for Design,
Ignoring Intervening Circumstances,
Frustrates Legislative Purpose and
Undermines Public Safety
{35} Although we acknowledge textual differences between our state statutes, we are
persuaded by the basic premise espoused in
cases from California and Kansas—that our
Legislature did not intend design immunity
to continue in perpetuity. See Mirzada v.
Dep’t of Transp., 4 Cal. Rptr. 3d 205, 208
(Ct. App. 2003) (“Design immunity does
not necessarily continue in perpetuity.”
omitted)); Dunn v. Unified Sch. Dist. No.
367, 40 P.3d 315, 325 (Kan. Ct. App. 2002)
(“We do not believe the legislature intended
governmental entities to be perpetually immune from design or planning flaws . . . .”).
Allowing design immunity to continue into
perpetuity would not further the purpose
of design immunity, while frustrating the
overall purpose of encouraging safe highway
maintenance.
{36} As stated by the California Court of
Appeals, “[t]he rationale for design immunity is to prevent a jury from second-guessing
the decision of a public entity regarding a
particular plan or design of a public construction or improvement.” Cornette v. Dep’t
of Transp., 95 Cal. Rptr. 2d 733, 738 (Ct.
App. 2000), superceded and aff’d by Cornette
v. Dep’t of Transp., 26 P.3d 332, 336 (Cal.
2001). Another California decision stated
that legislatures do not want juries to “be
allowed to second-guess the discretionary
determinations of public officials by reviewing the identical questions of risk that had
previously been considered by the government officers who adopted or approved the
plan.” Baldwin v. State of California, 491
P.2d 1121, 1128 (Cal. 1971), superceded in
part by Cal. Gov’t Code § 830.6.
{37} Plausibly, initial roadway design decisions may be based on weighing potential
risks, looking to the future, without the
benefit of an accident history or other
empirical evidence demonstrating how the
design works in practice. See id. at 1122,
1128 (“[W]e are convinced that the [l]
egislature did not intend that public entities should be permitted to shut their eyes
to the operation of a plan or design once
it has been transferred from blueprint to
blacktop.”). Once a design has been put
into operation, however, “there will then be
objective evidence arising out of the actual
operation of the plan—matters which, of
necessity, could not have been contemplated
by the government agency or employee who
approved the design.” Id. at 1128.
{38}In instances involving highways,
actual traffic flow can be monitored, as opposed to potential traffic flow based on models. Actual collisions can be studied, along
with ways to mitigate such occurrences in
the future, based on what is actually happening on the ground. This is in contrast
to what might happen in theory, should a
highway be built in a particular manner. In
such instances, a jury would not simply be
re-weighing the same potential risks as the
original designer of the roadway, but instead
would be balancing inaction on the part of
the governmental entity with actual facts as
to how the roadway has functioned under
operation. “No threat of undue interference
with discretionary decision-making exists in
this situation.” Id.
{39} We find this reasoning persuasive.
Perpetual design immunity, if broadly
construed, would thwart the overarching
purpose of ensuring highway safety and
protecting the motoring public. As we
stated in Rutherford, “[t]he sole purpose of
waiver in Section 41-4-11(A) is to ensure
that highways are made and kept safe for
the traveling public.” 2003-NMSC-010, ¶
24 (internal quotation marks and citation
omitted). This “sole purpose” would be
frustrated if DOT could simply throw its
hands up and claim immunity based on
design, despite knowing, based on empirical
evidence, that what was designed in theory
proved fatal in fact. Taken to an extreme,
perpetual design immunity would allow
DOT to ignore reality and escape accountability even if a particular stretch of highway
were to cause fatalities on a regular basis.
We will not assume such short-sightedness
in our Legislature when public safety is our
mutual concern. “Having approved the
plan or design, the governmental entity may
not, ostrich-like, hide its head in the blueprints, blithely ignoring the actual operation
of the plan.” Baldwin, 491 P.2d at 1127.
Evidence of Events Putting DOT
on Notice of a Dangerous Condition
{40} While acknowledging the import of
Rutherford and DOT’s maintenance obligations under the Act, the district court
nonetheless excluded all evidence of a
history of cross-median collisions on NM
502. The court ruled that such evidence,
to be relevant and admissible, “would have
to show a defect in the location of the accident.” As the Court of Appeals stated, “the
district court determined that the previous
accidents occurred too far from the location
of decedents’ accident to prove that the same
defect or dangerous condition was present.”
Martinez, 2011-NMCA-082, ¶ 25. In addition, “the district court excluded . . . newspaper articles, citizen complaints, testimony
by Plaintiffs’ expert, and evidence pertaining
to the configuration of the road on the basis
that this evidence dealt with the design of
the road . . . .” Id. ¶ 26. These rulings were
affirmed by the Court of Appeals. Id. ¶ 27.
{41} With this evidence, Plaintiffs intended
to show that DOT had notice—that it knew
or should have known—of a dangerous
condition along NM 502, including the
collision site, sufficient to trigger a duty to
take remedial measures. Whether DOT
had notice is a question of fact for the jury
to determine. Ryan, 1998-NMCA-116, ¶
8. Notice “becomes a question of law only
if no room for ordinary minds to differ exists.” Hull v. S. Coast Catamarans, L.P., 365
S.W.3d 35, 45 (Tex. Ct. App. 2011). By
excluding this evidence, the district court
essentially determined that no reasonable
juror could conclude from such evidence
that DOT either knew or reasonably should
have known of the risk at the collision
site and the need for reasonable efforts to
remedy that risk. In our view, the district
court took an unnecessarily narrow view of
what might reasonably persuade a jury on
the question of notice.
{42}Rather than requiring all evidence
of notice to relate to the exact site of the
collision, we believe that more latitude was
appropriate. See Romero, 112 N.M. at 334,
815 P.2d at 630 (cautioning against imposing “an unduly restrictive interpretation
[of ] both [the] admissibility of relevant
evidence and on the term ‘maintenance.’”).
In Ryan, the Court of Appeals noted that
the plaintiffs “presented affidavit evidence
that a series of accidents occurred on that
particular stretch of highway as a result of
wild-animal crossings.” 1998-NMCA-116,
¶ 10 (emphasis added). This is a more appropriate view of relevancy when determining whether DOT had notice of a dangerous
condition along a highway.
{43} Depending on the particular characteristics of the road, evidence of other
collisions occurring in the general area of
the particular collision or in other areas
with similar characteristics, may be relevant
to notice. Taking a static, rigid view of the
“location” of the accident takes from the
jury the opportunity to decide whether
DOT acted reasonably under the circumstances. Particularly when the Legislature
has spoken in such broad terms, courts
should be wary of preempting the role of
the jury.
{44}The Ryan Court found that an issue of
fact existed as to whether DOT had notice
of a dangerous condition, precluding summary judgment. Id. ¶ 9. As noted above,
the plaintiffs introduced affidavit evidence
of a series of collisions with wild animals on
the particular “stretch” of highway at issue.
Id. ¶ 10. DOT countered by pointing out
that there was no evidence that any such
collisions had occurred in the last five years.
Id. This was sufficient to create a question
of fact for the jury to resolve. Id. In short,
reasonable minds could differ on whether
such facts were sufficient to provide DOT
with adequate notice.
{45}The parties in this case also offered
conflicting evidence. Attached to its motion for partial summary judgment, DOT
offered two different expert affidavits containing the identical conclusion that “[t]he
topography, terrain and curvature of NM
502 changes constantly along its 18-mile
length such that the conditions of any one
mile stretch are not the same as any other.”
A DOT assistant district engineer stated
that “[b]ecause geometric design and traffic operational characteristics vary along
NM 502, it is unreasonable to compare or
contrast crash frequency or characteristics
near milepost 9 with other sites along this
route.” As a result, DOT argued that other
collisions occurring near mile markers 8 and
10 were not relevant to the collision in this
case that occurred near mile marker 9.
{46} Plaintiffs countered with the affidavit
of an expert which observed that “[i]n the
absence of a fixed central barrier, cross-median accidents are particularly dangerous,”
and concluded:
[t]he roadway, between the end
of the solid barrier and the SR30
overpass at MM10, is not that different from the section of SR502
with the barrier. The road continues to have a relatively steep downhill grade, with continuous curves
to the right and left in a serpentine
fashion, until some distance below
(to the east of ) MM10. It is hard
to see why all of the roadway, down
to MM10 and below, should not
have a solid barrier, separating the
eastbound and westbound lanes.
{47} Based on these conflicting affidavits, it
would appear that reasonable minds could
differ over whether DOT should or should
not have been on notice of the need to take
remedial action. DOT’s engineer stated
that it would be “unreasonable” to compare
crash sites, while Plaintiff’s expert essentially
concluded the opposite. Questions of “reasonableness” are quintessential issues for a
jury to resolve. In our system of justice,
we place special confidence in juries to sort
through conflicting evidence and come to
a reasonable conclusion.
{48} By skillful cross-examination of Plaintiff’s expert and use of its own experts, DOT
would have been able to defend its position
before the jury. DOT was free to persuade
the jury how each section of NM 502 was so
different that notice of a cross-over collision
in one location could not reasonably put its
engineers on notice of the need to prevent
cross-over collisions in some other location.
The court should have allowed the normal
fact-finding process to proceed.
{49}The question of notice is not a
technical one. Simply put, it requires the
fact-finder to decide whether the evidence
presented would alert a reasonable person
of a particular fact. See Ambassador E.
Apts, Investors v. Ambassador E. Invs., 106
N.M. 534, 537, 746 P.2d 163, 166 (Ct.
App. 1987) (applying a reasonable person
standard to the issue of constructive notice).
We agree with the following description
from our Court of Appeals:
In jury trials, reasonable minds are
a cross-section of a community
called for jury service. Each trial
judge believes he has a reasonable
mind, and knows what reasonable
minds are, but he cannot know
whether reasonable minds will differ. Where an issue of negligence is
involved, ordinarily the trial court
should allow a jury to determine
whether “reasonable minds” can
differ.
Tapia v. McKenzie, 83 N.M. 116, 120, 489
P.2d 181, 185 (Ct. App. 1971) (Sutin, J.,
specially concurring).
{50} It is undisputed that DOT knew of
these previous collisions. NMSA 1978,
Section 66-7-207(C) (2007) requires law
enforcement officers to forward a written
report of all accidents that result in death
to DOT within 24 hours of the completion
of the investigation. DOT’s own affidavits
concede as much. Thus, the dispute here
centered around whether the fatal crossover collisions that occurred elsewhere on
NM 502 should have put DOT on notice
of a potentially dangerous condition at and
around mile marker 9, and the need to
prevent cross-overs from occurring at that
location as well. We hold that when the
district court took this issue away from the
jury, it committed reversible error.
Remaining Issues
{51} Plaintiffs also raise other evidentiary
issues involving the admissibility of Donald Espinoza’s toxicology report as well as
various items found in Amelia Martinez’s
vehicle after the crash. The Court of Appeals discussed these evidentiary rulings in
sufficient detail, which we find persuasive.
See Martinez, 2011-NMCA-082, ¶¶ 28, 29.
We affirm the Court of Appeals on these
issues.
{52}Finally, Plaintiffs argue that they, as
grandparents of Amelia’s unborn child,
have a valid claim to the loss of consortium
of their unborn grandchild, a fatality of
this accident. The district court granted
judgment as a matter of law on this issue
in favor of DOT and the Court of Appeals
declined to address it. Plaintiffs admit that
they “could not find any law directly on
point in any jurisdiction” that would uphold
such a claim. They instead ask this Court to
extend New Mexico law to allow the claim
under these circumstances. We decline to
make such an extension at this time.
CONCLUSION
{53} For these reasons, we reverse the Court
of Appeals on the issues discussed in this
opinion, and remand to the district court
for a new trial consistent herewith.
RICHARD C. BOSSON,
Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice
Certiorari Denied, February 7, 2013, No. 33,983
Opinion Number: 2013-NMCA-027
Topic Index:
Appeal and Error: Substantial or Sufficient Evidence
Criminal Law: Child Abuse and Neglect; and Contributing
to the Delinquency of a Minor
STATE OF NEW MEXICO,
Plaintiff-Appellee,
versus
HARLA WEBB,
Defendant-Appellant.
No. 31,577 (filed December 12, 2012)
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
KAREN L. PARSONS, District Judge
GARY K. KING
Attorney General
OLGA SERAFIMOVA
SRI MULLIS
for Appellee
Opinion
Timothy L. Garcia, Judge
{1} Defendant Harla Webb signed the written consent form to allow a piercing to occur
on a minor without obtaining authorization
or permission from the minor’s parent or
legal guardian. Though the piercing was successful, the minor sustained serious injuries
as a result of an accidental fall in the tattoo
parlor. Defendant appeals her convictions
for child abuse by endangerment without
great bodily harm and contributing to
the delinquency of a minor. We affirm
Defendant’s conviction for contributing to
the delinquency of a minor but reverse her
conviction for child abuse by endangerment
because the State did not present sufficient
evidence from which the jury could find that
Defendant’s conduct created a substantial
and foreseeable risk of harm.
BACKGROUND
{2} On May 20, 2009, Defendant picked
up her daughter, Steffanie, and two of her
daughter’s friends, including fifteen-year-old
Nicole, from Ruidoso Middle School. De-
JACQUELINE L. COOPER
Chief Public Defender
KATHLEEN T. BALDRIDGE
Assistant Appellate Defender
for Appellant
fendant and Nicole were not related and had
never previously met. Steffanie and Nicole
had arranged for Nicole to be picked up
by Defendant because Steffanie was going
to get her belly button pierced and Nicole
wanted to get her tongue pierced.
{3} Defendant drove the girls to Tre’s Tattoo
Studio in Ruidoso. Nicole told Defendant
that her mother, Jennifer “Michelle” Pino,
had given her permission to have her tongue
pierced, but this was not true. Nicole had
sufficient cash to pay for the piercing, which
Defendant believed meant that Nicole’s
mother had given her permission. Defendant did not contact Nicole’s mother.
{4}When they arrived at Tre’s Tattoo
Studio, the owner, Joe “Tre” Garcia, provided Steffanie and Nicole with a piercing
record and release form (Release Form).
Nicole completed the top portion of the
Release Form, providing her name, contact
information, age, and date of birth. She
indicated that she did not have any allergies,
history of bleeding, or blood borne irregularities. In accordance with New Mexico
law, 16.36.5.11 NMAC (5/16/2008), the
Release Form required a parent or legal
guardian to consent to a minor’s piercing.
The Release Form states:
A person may not perform a
piercing on a minor without the
consent of the minor’s parent or
legal guardian, and an establishment may not perform a piercing
on a minor under the age of 18
unless the minor is accompanied
by a (Parent or Legal Guardian). I
authorize the piercing described to
be performed on my child.
Defendant printed her name and signed as
Nicole’s parent or legal guardian.
{5}There was conflicting testimony surrounding Defendant’s act of signing Nicole’s Release Form. Garcia testified that
he asked Defendant whether Steffanie and
Nicole were her daughters and Defendant
answered, “Yes.” He said that if Defendant
had told him that she was not related to
Nicole, he would not have performed the
piercing. Defendant testified that she did
not present herself as Nicole’s mother or
guardian. She said she signed the Release
Form because Garcia told her to sign it and
she “didn’t think it was that big of a deal.”
{6} Nicole received a tongue piercing without complications. She then sat on a chair
to watch Steffanie receive her piercing. Before Steffanie received her piercing, Nicole
passed out and hit the tile floor face first.
She was unconscious for approximately ten
to fifteen seconds. When she woke up, she
looked in the mirror and saw blood “gushing
everywhere.” She noticed one of her teeth
was missing and two were damaged. She had
bruising on her face and body and was “in
a lot of pain.”
{7} Nicole testified that Defendant did not
offer to call 911 or take her to the hospital.
Garcia testified that Defendant did not try
to help Nicole in any way and told Garcia
that it was a good thing she was taking Nicole to the dentist the next day. Defendant
testified that she wanted to call 911 or take
Nicole to the hospital but Nicole said she
was okay. Defendant testified that Nicole
appeared to have “a couple chipped teeth”
but “seemed fine.”
{8} Defendant left the tattoo parlor with
the children and drove Nicole home.
When they arrived at Nicole’s house, Steffanie walked Nicole to her front door but
did not go inside. Defendant did not exit
the car and did not inform anyone about
the piercing or the accident. Nicole told
her mother’s boyfriend that she fell down.
When Nicole’s mother arrived home from
work, she observed bruises on Nicole’s face
and damage to Nicole’s mouth and teeth.
Nicole told her mother she had passed
out after school. Nicole’s mother made an
emergency dental appointment for the next
morning. Later that night, Nicole told her
mother the truth about her fall and the
piercing. Nicole’s mother called Steffanie’s
cell phone and asked to speak to Defendant.
Defendant did not come to the phone and
did not return the phone call.
{9}On May 21, Nicole’s mother took
Nicole to a dentist in Alamogordo. The
damage to Nicole’s teeth was more extensive
than anyone suspected. As of October 2011,
Nicole had received three root canals and
four sets of temporary teeth and still needed
additional treatment. She received penicillin during the course of her treatment and
discovered, for the first time, that she was
allergic to the drug. Because she missed so
many days of school, Nicole was forced to
drop out and, at the time of the trial, was
working to obtain her GED. She testified
her mouth was “always in pain.”
{10} Garcia was the only witness who testified about the risks of tongue piercing. He
testified as follows:
Q:Now, are there any risks involved?
A:Not really. It’s rare that . . . you
hear a lot of . . . people . . . say
that you’ll hit a vein. You won’t.
Your veins run on the side of
your tongue. In the rare occasion, every one in 100, one in
150, has that vein in the middle
and you can’t do it.
Q:Okay. What about for infections and things of that nature?
Is there a risk?
A:We tell you how to take care of
it . . . . If you don’t take care of
it, it’s gonna get infected, like
anything else.
Q:So, . . . so you’re saying, there
is a risk?
A:Oh, yes, ma’am. There’s a risk
with anything, with an ear
piercing, a tattoo, . . . eyebrow
piercing, a tongue piercing, all
of it.
Q:Okay. Alright, so are there any
other types of risk involved?
A:Just infection. Infection is the
main risk.
He testified that in his approximately
twenty years of doing piercings, he had
never seen someone faint from a piercing
before Nicole.
{11}Defendant was charged by way of
criminal information with three counts: (1)
abandonment of a child resulting in great
bodily harm; (2) forgery; and (3) contributing to the delinquency of a minor (CDM).
The State filed a nolle prosequi on the forgery
count prior to trial. A jury trial was held
on November 18, 2010. Defense counsel
moved for a directed verdict at the close of
the State’s case. The district court denied
the motion. Defense counsel renewed the
motion at the close of the evidence and the
court again denied the motion.
{12} The jury was instructed on child abuse
with and without great bodily harm. To find
Defendant guilty of child abuse without
great bodily harm, the State had to prove
beyond a reasonable doubt, inter alia:
1. [Defendant] caused Nicole . . .
to be placed in a situation which
endangered the life or health of
Nicole;
2. [D]efendant acted with reckless
disregard and without justification.
To find that [Defendant] acted
with reckless disregard, you must
find that . . . [D]efendant knew or
should have known [D]efendant’s
conduct created a substantial and
foreseeable risk, . . . [D]efendant
disregarded that risk and [D]efendant was wholly indifferent to the
consequences of the conduct and
to the welfare and safety of Nicole
[.]
{13} The jury was instructed that, to find
Defendant guilty of CDM, the State had to
prove beyond a reasonable doubt, inter alia:
1.[D]efendant took the child
to have a piercing and signed the
consent for the procedure without
conferring with [Nicole’s] parent
and/or . . . [D]efendant did not
seek medical treatment for the
child and/or notify [Nicole’s] parent of [Nicole’s] injuries.
2. This caused and/or encouraged
Nicole . . . to refuse to obey the
reasonable and lawful commands
or directions of her parent a person
who had lawful authority over Nicole . . . [OR] conduct herself in
a manner injurious to her morals
and/or health and/or welfare of
Nicole.
The jury found Defendant guilty of child
abuse without great bodily harm and CDM.
DISCUSSION
{14} On appeal, Defendant challenges the
sufficiency of the evidence to support her
conviction. “[O]ur review for sufficiency
of the evidence is deferential to the jury’s
findings.” State v. Garcia, 2011-NMSC-003,
¶ 5, 149 N.M. 185, 246 P.3d 1057. We
review direct and circumstantial evidence
“in the light most favorable to the guilty
verdict, indulging all reasonable inferences
and resolving all conflicts in the evidence
in favor of the verdict.” Id. (internal quotation marks and citation omitted). We must,
however, scrutinize “the evidence and supervision of the jury’s fact-finding function
to ensure that, indeed, a rational jury could
have found beyond a reasonable doubt the
essential facts required for a conviction.”
State v. Rojo, 1999-NMSC-001, ¶ 19, 126
N.M. 438, 971 P.2d 829 (internal quotation
marks and citation omitted).
A. Child Abuse by Endangerment
{15}Defendant was convicted of child
abuse by endangerment pursuant to NMSA
1978, Section 30-6-1(D)(1) (2009), which
defines the offense as “knowingly, intentionally or negligently, and without justifiable
cause, causing or permitting a child to be .
. . placed in a situation that may endanger
the child’s life or health[.]” “[T]he legislative
purpose that animates [this] statute [is] to
punish conduct that creates a truly significant risk of serious harm to children[,]” it
“would be reserved for the most serious occurrences, not for minor or theoretical dangers.” State v. Chavez, 2009-NMSC-035, ¶¶
16, 22, 146 N.M. 434, 211 P.3d 891. Prior
to Chavez, we reviewed convictions under
this statute to determine whether the State
had proved the defendant’s conduct created
a “reasonable probability or possibility”
of endangerment. Id. ¶¶ 16, 17 (internal
quotation marks and citation omitted). In
Chavez, the Supreme Court rejected this test
and held that, to support a conviction, the
state must prove the defendant’s conduct
“created a substantial and foreseeable risk of
harm.” Id. ¶ 22 (emphasis, internal quotation marks, and citation omitted).
{16}Since Chavez, we have upheld a
conviction for child abuse by endangerment where a defendant, while intoxicated,
drove a vehicle with his nine-year-old child
as a passenger. See State v. Orquiz, 2012NMCA-080, ¶ 8, 284 P.3d 418, cert.
granted, 2012-NMCERT-___, ___ P.3d
___, (No. 33,677, Aug. 3, 2012). We have
also upheld a conviction for child abuse by
endangerment where a reasonable jury could
have found a defendant was aware that her
son was being abused by her boyfriend and
continued to leave her son in the boyfriend’s
care, ultimately resulting in her son’s death
by abuse. State v. Vasquez, 2010-NMCA041, ¶¶ 3, 21, 24, 148 N.M. 202, 232 P.3d
438.
{17} Defendant contends the State failed
to present any evidence that her conduct
created a substantial and foreseeable risk
of harm to Nicole. The State argues that
Defendant’s conduct of signing the Release
Form created a substantial and foreseeable
risk of harm to Nicole from the piercing
itself and from the possibility of an infection. The State also argues that Defendant’s
lack of knowledge about the tongue piercing
procedure and about Nicole’s medical history, in particular her allergy to penicillin,
created a substantial and foreseeable risk of
harm to Nicole.
{18} We consider the following factors in
analyzing whether a defendant’s conduct
supports criminal liability for child abuse
by endangerment: “(1) the gravity of the
risk created by the defendant, (2) whether
the underlying conduct violates a statute,
and (3) the likelihood of harm to the child.”
State v. Gonzales, 2011-NMCA-081, ¶ 17,
150 N.M. 494, 263 P.3d 271, cert. granted,
2011-NMCERT-008, 268 P.3d 514. While
the likelihood that harm will occur is “no
longer a determinative factor . . . it still
remains an important consideration when
evaluating the magnitude of the risk.” Id.
omitted).
{19} Defendant provided written consent
for Nicole to receive a tongue piercing. The
State first argues the piercing itself constituted a substantial and foreseeable risk of
harm from Defendant’s conduct. While it
was certainly foreseeable that Nicole would
receive a piercing based on Defendant’s act
of signing the Release Form, we are not
persuaded by the evidence presented in this
case that piercing is the type of most serious
occurrence from which our Legislature intended to protect children. In reaching this
conclusion, we reject the State’s argument
that this case is analogous to the dangers
identified in State v. Graham, 2005-NMSC004, 137 N.M. 197, 109 P.3d 285.
{20}In Graham, our New Mexico Supreme
Court held there was sufficient evidence
to support the defendant’s conviction for
child abuse by endangerment where, during a lawful search of a house in which two
infants were present, police officers found
a marijuana roach on the living room floor
and a marijuana bud in a crib. Id. ¶¶ 2,
15 (applying the less stringent test utilized
before the standard was changed in the
Chavez decision). The Graham Court explained: “Given the illegality of the [marijuana] and the Legislature’s determination
that the substance is particularly dangerous
to minors, we believe it is within the jurors’
experience to decide whether the amount
of accessible marijuana endangered the
health of [the young children].” Id. ¶ 12.
Unlike marijuana, body piercing is not
illegal. The State directs us to Subsection
(C)(7) of Regulation 16.36.5.11 of the
Administrative Code, which requires body
art establishments to maintain written proof
of the presence and consent of a parent or
legal guardian for procedures performed
on clients who are minors. This suggests, at
most, that body piercing is an adult activity
unless consent is provided. It does not suggest that piercing, in and of itself, is illegal or
presents a foreseeable risk of serious harm to
children. As such, Graham is inapposite and
applied a standard for foreseeable endangerment that is no longer utilized by our courts.
{21}The State next argues that infection
was a substantial and foreseeable risk of
harm from Defendant’s conduct. While
the State may have attempted to establish
that infection constituted a substantial risk,
it failed to do so based upon the evidence
presented in this case. The only witness
who testified regarding the risk of infection
was Garcia, the owner of the tattoo parlor.
Garcia testified that “[i]nfection is the main
risk” of tongue piercing but he did not quantify the risk in any way and, in fact, seemed
to minimize it. Even assuming that the level
of risk from post-piercing infection could
be established with empirical or scientific
evidence, there was no such evidence here.
{22} The State also argues that Defendant’s
conduct supports criminal liability because
Defendant lacked knowledge about tongue
piercing and about Nicole’s medical history, in particular, her allergy to penicillin.
We are not persuaded. Defendant did not
perform the piercing; rather, she signed
the consent form allowing Nicole to be
pierced by Garcia. Whether Defendant’s
actions endangered Nicole’s life or health
within the meaning of the statute does
not depend on Defendant’s knowledge of
tongue piercing. The evidence established
that Garcia had sufficient knowledge and
experience to perform this type of piercing.
As for the allergy, at the time Nicole received
the piercing, neither Nicole nor her mother
knew that Nicole was allergic to penicillin.
The child endangerment statute “evinces
a legislative intent to use the concept of
criminal negligence . . . as the standard for
negligent child abuse.” State v. Schoonmaker,
2008-NMSC-010, ¶ 44, 143 N.M. 373,
176 P.3d 1105. In order to be criminally
negligent, a defendant need not be subjectively aware of a risk, but the risk must be
one of which “‘he should be aware.’” Id. ¶ 43
(emphasis omitted) (quoting Model Penal
Code § 2.02(c) (Official Draft and Revised
Comments 1962)). “The risk must be of
such a nature and degree that the actor’s
failure to perceive it, . . . involves a gross
deviation from the standard of care that a
reasonable person would observe in the actor’s situation.” Id. (emphasis omitted). No
one could have foreseen that Nicole would
have or develop an allergy to penicillin,
which would complicate her treatment.
Defendant cannot be convicted for child
abuse for failing to perceive a risk to Nicole
of which nobody was aware.
{23}The State did not present sufficient
evidence from which a jury could find that
Defendant’s conduct created a substantial
and foreseeable risk of serious harm to
Nicole. As we explained in Gonzales, “it
is the endangerment and not the resulting injury that constitutes the offense[.]”
2011-NMCA-081, ¶ 20. Thus, to support
liability, “there must be an actual or imputed
foreseeability of danger directed toward the
children who might be injured as a result
of Defendant’s acts.” Id. There was no such
foreseeability of serious injury established
in this case. Accordingly, we reverse Defendant’s conviction for child abuse by
endangerment.
B.Contributing to the Delinquency
of a Minor
{24}Defendant was also convicted of
CDM pursuant to NMSA 1978, Section
30-6-3 (1990), which defines the offense as
“committing any act or omitting the performance of any duty, which act or omission
causes or tends to cause or encourage the
delinquency of any person under the age of
eighteen years.” Defendant contends there
was insufficient evidence to show that she
“cause[d] and/or encourage[d] Nicole to
deceive her mother.” We disagree.
{25}In State v. Dietrich, we rejected the
defendant’s argument that there was insufficient evidence to support his conviction
for CDM because the minor, an admitted
heroin user, never testified that the defendant encouraged him to use alcohol or
drugs. 2009-NMCA-031, ¶¶ 56, 61, 145
N.M. 733, 204 P.3d 748. We held that the
minor’s testimony that the defendant “provided and purchased drugs and alcohol for
[the minor] satisfies the element of causing
[the minor] to engage in underage drinking/
drug use whether or not [the d]efendant
encouraged such use.” Id. ¶ 61 (alteration,
internal quotation marks omitted). Similarly
here, the jury could find that Defendant’s act
of transporting Nicole to the tattoo parlor
and signing the Release Form caused or
encouraged Nicole to deceive her mother
by obtaining a piercing without permission
even though Defendant did not actively
encourage the piercing.
{26}“The purpose of the CDM statute
is to protect children from harmful adult
conduct.” State v. Barr, 1999-NMCA-081,
¶ 17, 127 N.M. 504, 984 P.2d 185 (internal
quotation marks and citation omitted); see
also State v. Pitts, 103 N.M. 778, 780, 714
P.2d 582, 584 (1986) (“[T]he intent of the
Legislature in enacting Section 30-6-3 . . .
was to extend the broadest possible protection to children, who may be led astray in
innumerable ways.”). Our New Mexico
Supreme Court has “consistently rejected
narrow constructions of the statute that
would limit its usefulness in protecting
children.” Pitts, 103 N.M. at 780, 714 P.2d
at 584. “We always have relied on juries to
determine what acts constitute contributing
to delinquency in a particular case.” State
v. Trevino, 116 N.M. 528, 531, 865 P.2d
1172, 1175 (1993).
{27} Even though Nicole told Defendant
that her mother had given her permission
for a tongue piercing, it was for the jury to
determine whether Defendant’s failure to
confirm this with Nicole’s mother or require
Nicole’s mother to sign the Release Form
was reasonable under the circumstances.
See State v. Romero, 2000-NMCA-029, ¶
31, 128 N.M. 806, 999 P.2d 1038 (“[W]
here the State seeks to convict a defendant
of CDM for causing or encouraging a minor
to refuse to obey the reasonable and lawful
command or direction of the minor’s parent
. . . the State must prove . . . that the defendant knew or by the exercise of reasonable
care should have known of such command
or direction.”). The State introduced sufficient evidence from which the jury could
find that Defendant knew or should have
known that Nicole’s mother had not consented to the piercing. Defendant testified
that she believed Nicole had her mother’s
permission because she had sufficient cash to
pay for the piercing, but it was for the jury
to determine whether this was reasonable.
Defendant did not contact Nicole’s mother,
or any other member of Nicole’s family,
even after the accident. The jury could have
inferred from this conduct that Defendant
knew she had acted without permission. Accordingly, we conclude there was sufficient
evidence to support Defendant’s conviction
for CDM.
CONCLUSION
{28} We affirm Defendant’s conviction for
contributing to the delinquency of a minor.
Because we conclude the evidence was insufficient to support Defendant’s conviction for
child abuse by endangerment, we reverse
Defendant’s conviction on that count and
remand for further proceedings consistent
with this Opinion.
TIMOTHY L. GARCIA, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
MICHAEL E. VIGIL, Judge
We’re more than just a bunch of pretty faces.
The John Field Simms, Sr.
Memorial Lectureship in Law
April 3, 2013, 4:30 p.m.
UNM School of Law
2013 Lecturer:
The Honorable James O. Browning
“A Border Trial Judge Looks at Immigration—
Heeding the Call to Do Principled Justice to the Alien
Without Getting Bogged Down in Partisan Politics:
Why the United States Immigration Laws are Not
Broken (But Could Use Some Repairs)”
One general CLE credit
RSVP to [email protected] or 505.277.8184.
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The Advisors’ Trust Companysm
Meet the newest members
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2013 Annual Meeting—
Bench and Bar Conference
Santa Fe Community Convention Center • June 27-29, 2013
Bench and Bar: Improving the Quality of Justice Together
For information on exhibit space or sponsorship
opportunities, contact Marcia Ulibarri at
505-797-6058 or [email protected]
www.nmbar.org
State Bar of New Mexico Young Lawyers Division, N.M. Indian Bar Association, N.M. Hispanic Bar Association,
N.M. LGBT Bar Association, N.M. Women’s Bar Association, Albuquerque Bar Association,
and N.M. Black Lawyers Association present:
DANCING WITH THE BAR
A celebration of diversity
Join us for a night of dancing, hors d’oeuvres, and drinks.
Learn more about our organizations.
Friday, April 19, 2013
5 p.m.–Midnight
HOTEL ANDALUZ
125 2nd St. NW, Albuquerque, NM 87102
complimentary valet parking available
Hotel Andaluz is offering Dancing With the Bar attendees a 20% discount on
hotel rooms that night. When making reservations, use the promotional code “catering”.
This event would not be possible without the following generous sponsorships:
Diamond Level Sponsorship ($1000)
State Bar of New Mexico
Sutin, Thayer & Browne, APC
Platinum Level Sponsorship ($750)
State Bar of New Mexico Young Lawyers Division
Other Sponsorships
Chicoski Law Firm, LLC
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Roybal-Mack Law PC
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Beall & Biehler Law Firm – Mary T. Torres
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If your firm or organization is interested in being a sponsor for this event, please contact
2013 State Bar of New Mexico Young Lawyers Division Chair Keya Koul at [email protected].
Wills for Heroes
The Young Lawyers Division would like to express its gratitude
to the following volunteers for generously giving their time
and expertise to the Wills for Heroes event on March 7 at the
Westside Community Center:
Jordan DeHaan
Spencer Edelman
Robert Lara
Monica Casias McKay
Erin Olson
Edmund Perea
Tania Silva
Manny Talwar
This program would not be successful
without our volunteers’ continued support!
Providing resources, savings on
products and services to members.
Lawyers and Judges
Assistance Program
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Bridge the Gap
Mentorship Program
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For more information on our
Member Benefits Program,
go to www.nmbar.org or contact
Marcia C. Ulibarri, Account Executive,
505-797-6058 or [email protected].
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Annual Compliance Reports
The 2012 Annual Compliance Reports have been mailed
to all active licensed New Mexico attorneys. The reports
include all information for courses taken by 12/31/12.
All non-compliant attorneys have been assessed a late
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e-mail [email protected], or write to MCLE, PO Box 93070,
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New Mexico Legal Aid has seeks an Assistant
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will work closely with the State Bar and the Commission on Access to Justice. Duties will include:
Recruit and assist pro bono attorneys; Support
trainings and CLEs; Assist with daily operations
of the Volunteer Attorney Program. Minimum
Requirements: High quality communication and
administrative skills; College degree or relevant
professional experience; In-state travel including
overnights; Proficiency in Spanish is a plus. Send
resume, references and cover letter to: jobs@
nmlegalaid.org. Deadline: April 5, 2013. Salary
DOE, NMLA is an EEO Employer.
Assistant District Attorney
The Fifth Judicial District Attorney’s office has
an immediate position open to a new or experienced attorney. Salary will be based upon the
District Attorney Personnel and Compensation
Plan with starting salary range of an Associate Trial Attorney to a Senior Trial Attorney
($41,685.00 to $72,575.00). Please send resume
to Janetta B. Hicks, District Attorney, 400 N.
Virginia Ave., Suite G-2, Roswell, NM 882016222 or e-mail to [email protected].
www.nmbar.org
Attorney
Busy PI Law Firm looking for attorney with
3-10 years’ experience to practice in the Albuquerque area. Experience in litigation, specifically discovery and pleadings is a plus. Spanish
speakers preferred. Excellent pay and benefits
based on experience. Please email resume to
[email protected]
Legal Assistant
Law firm seeks a legal assistant. Duties include
administrative tasks related to legal cases.
Must have high school diploma with three to
five years of related experience working in a
defense, civil litigation law firm or equivalent
combination of education and/or experience
related to the discipline. Associates degree or
certificate related to legal administration work
is preferred. Must be proficient in Microsoft
Office, computerized data bases, related software and the ability to learn new, complex
programs. Must have an understanding of legal
documents and knowledge of court processes,
including the ability to draft documents and
follow them through the process. Seeking
highly skilled, professional, thoughtful, organized, and motivated individual with attention
to detail who can work in a demanding role.
If you believe you are qualified and have an
interest, please send resume, cover letter and
salary demands to [email protected].
Las Cruces Paralegal
Miller Stratvert PA is looking for candidates
with 2-5 years of civil litigation experience for
the Las Cruces office. Familiarity with New
Mexico law a plus. Excellent writing and proofreading skills, legal terminology proficiency,
organizational skills, and MS Word/Outlook/
Adobe Acrobat proficiency required. ProLaw
experience preferred. Self-motivation and the
ability to work with minimal supervision in a
busy, fast-paced environment is a must. Competitive salary, excellent benefits and positive
work environment. E-mail resume to Firm
Administrator, [email protected].
Legal Assistant
GUEBERT BRUCKNER P.C. busy litigation
firm looking for experienced Legal Assistant to
work with various attorneys as Word Processor/Proof Reader in an office pool, must enjoy
working as a team member. Word Processor
tasks include: processing letters, filing pleadings, and other misc documents for 10 attorneys. Must have strong writing and proof
reading skills. Knowledge of Local, State,
Federal Civil Rules helpful. Hours 8 to 5, starting Salary $13.00. Firm uses Microsoft Word,
Excel, and Outlook. Please submit resume and
salary requirement to Kathleen A. Guebert,
POB 93880, Albuquerque, NM 87109.
Litigation Paralegal – Santa Fe, NM
The Rodey Law Firm is accepting resumes for a
litigation paralegal position to assist attorneys
in its Santa Fe Office. Must have a minimum of
five years hands-on litigation experience. Applicants must possess the ability to manage a case
from the beginning through trial, including
document production/analysis/organization/
maintenance; discovery; all phases of case management; trial preparation and participation.
Heavy client contact, interaction with experts.
Requires flexibility and ability to manage multiple deadlines. Needs to be a self starter, willing
to take initiative and work as a member of case
team. Firm offers congenial work environment,
competitive compensation and excellent benefit
package. Please send resume to [email protected]
or mail to Human Resources Manager, PO Box
1888, Albuquerque, NM 87103.
Full Time Legal Assistant Position
Permanent full time legal assistant position
with small, busy downtown Albuquerque firm.
Must have excellent writing and language
skills. Successful applicant will be responsible
for calendaring, drafting pleadings, document/
discovery prep and client contact. Friendly
working environment with emphasis on
teamwork. Experience helpful but not required
as there will be training. Salary and benefit
DOE. Send resume and cover letter to jim@
vancechavez.com or mail to P.O. Box 25205,
Albuquerque, NM 87125-0205.
Experienced Santa Fe Paralegal Very Competitive Package!
Santa Fe Firm has an immediate opening for an
EXPERIENCED SANTA FE PARALEGAL
conscientious, hardworking, multi-tasking, mature, meticulous, professional and experienced
Paralegal to join our team. You MUST have previous SANTA FE law firm experience to be considered. The position requires excellent attention to
detail, accuracy in your work, typing at 80+ wpm,
excellent written and oral communication skills,
and the ability to organize and prioritize. Looking for a self-starter who has the ability to work
independently and as part of a TEAM. Our firm
is computer intensive, informal, non-smoking
and a fun place to work. Comp $50K to $60K+
per year. Annual salary, monthly bonus, 100%
paid medical/hosp, paid parking, paid holidays
+ sick and personal leave, and other benefits. All
responses will be kept strictly confidential. Please
send us your resume and over letter including
salary history in either MS Word or PDF format
to [email protected]
Legal Secretary/Assistant
Well established civil litigation firm seeking
Legal Secretary/Assistant with minimum
3- 5 years’ experience, including knowledge
of local court rules and filing procedures.
Excellent clerical, organizational, computer
& word processing skills required. Fast-paced,
friendly environment. Benefits. If you are
highly skilled, pay attention to detail & enjoy
working with a team, email resume to: Kay@
OnSiteHiring.com
Positions Wanted
Paralegal Seeking Contract Work
Mature, reliable, personable paralegal seeking
contract work in Santa Fe and Albuquerque.
Especially proficient in writing & editing.
John McAndrew at johnjmcandrew@mac.
com. 505-466-4487.
Services
Briefs, Research, Appeals--
Leave the writing to me. Experienced, effective, reasonable. [email protected]
(505) 281 6797
Reliable Virtual Bankruptcy
Assistant
Need help preparing bankruptcy petitions? 18
years experience. Please call Anita L. Slusser
at 505-486-1057 or email at NMRVBA@
hotmail.com.
Advocacy in Research and Writing
Rebecca Sitterly
505-238-5151 * [email protected]
"Based on her long years of experience as a trial
lawyer and judge, she comes up with arguments
and issues which may not have occurred to you.
She's the advocate I want on my side when time
is at a premium." —Randi McGinn, Esq.
Bookkeeping & Accounting
Desert Accounting, LLC
Bob Hyde, BBA: Accounting
505-771-1445
www.desertaccounting.net
“Do what you do well, and hire us to do what
we do well”!
Want a Second Pair of Eyes?
Editing, Writing, Research, Appeals & Briefs
Contact Shannon Nairn at 980-3813, stnoya@
msn.com
Legal Research/Briefs
Recently retired attorney 25 yr. experience
in N.M. solo general civil practice - $40 hr.
[email protected]
www.nmbar.org
Office Space
453 Cerrillos, Santa Fe
620 Roma Building, 620 Roma N.W.
Located within two blocks of the three downtown courts. Rent of $550.00 per month
includes five conference room, receptionist,
all utilities (except phones). Call 243-3751 for
appointment to inspect.
Office Space
Available for lease – Albq. Nob Hill Area. Perfect for small law office – 4401 Lomas Blvd.,
NE, just west of Washington NE. Easy access
to downtown. Beautiful corner of bldg. space
2,200SF. Great visibility, monument signage.
Call Sieg Montano, CPA 505-266-7900
Offices available with on-site parking. Two
blocks to new SF Courthouse-State Supreme
Court & Capitol. 170 – 1000 square feet. $475
- $1500/month. Call Lance Armer at 660-2335.
Shared Office Space
Share space with two small law firms at San
Mateo & Constitution. Two offices available,
660 SF total. $500/mo. for one, $950/mo. for
both. Services include janitorial, reception,
and all utilities except phone and internet. Off
street parking; shared areas include reception
areas, break room, and two conference rooms.
Call Shelly at 265-6491.
Office Space Available
Office space available near downtown, located
at 1905 Lomas Blvd. NW, or intersection of
19th & Lomas. Share space with other experienced practitioners. Two offices available, one
average sized office and one smaller sized office.
Conference room, file room, and landscaped
outdoor patio area included. Copier, scanner,
fax services provided with client codes. $500
per month for average sized office, $800 per
month for both offices. Call Joe Romero at
(505) 239 - 8985.
SUBMISSION DEADLINES
All advertising must be submitted via Email by 4:00 p.m. Wednesday, two weeks prior
to publication (Bulletin publishes every Wednesday). Advertising will be accepted for
publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher
and subject to the availability of space. No guarantees can be given as to advertising
publication dates or placement although every effort will be made to comply with
publication request. The publisher reserves the right to review and edit ads, to request that
an ad be revised prior to publication or to reject any ad. Cancellations must be received
by 10 a.m. on Thursday, 13 days prior to publication.
For more advertising information, contact:
Marcia C. Ulibarri at 505-797-6058
or Email [email protected]
CRASHWORTHINESS
The science of preventing or minimizing
serious injury or death following an
accident through the use of safety
systems.
WWW.VEHICLESAFETYFIRM.COM
If your client is seriously injured or killed in a motor
vehicle accident, the performance of the vehicle’s
safety systems must be evaluated.
Crashworthiness cases do not focus on driver
negligence in the accident. Instead,
crashworthiness focuses on poor designs and
defects that cause the injuries. Your client may be
the cause of the accident but still have a viable
crashworthiness case.
Give us a call or visit the website.
CRASHWORTHINESS is all we do at the TRACY
ﬁrm.
T
214-324-9000
2013 Annual Meeting—
Bench and Bar Conference
Santa Fe Community Convention Center
June 27-29, 2013
Bench and Bar:
Improving the Quality of Justice Together
Golf Tournament
Thursday, June 27 • 1 p.m. (ticketed)
The Club at Las Campanas
132 Clubhouse Drive, Santa Fe, NM 87506
Golf rises to a new level on The Club at Las Campanas’ two
Jack Nicklaus Signature golf courses, both consistently rated
among the top courses in New Mexico by Golf Digest. Each
of the award-winning, 18-hole courses offers an unparalleled
golfing experience enhanced by glorious mountain vistas.
President’s Reception and Dinner
Entertainment by the Tejas Brothers
Friday, June 28 • 6:30–9 p.m. (ticketed)
Join President Andrew J. Cloutier, fellow members, and friends at a
reception featuring a buffet dinner and entertainment. The Tejas Brothers
reach your heart and poke your funny bone. Their sound is unique, yet
familiar. It’s like something brand new on top of something we’ve all
known and loved forever.
To purchase your tickets, go to
www.nmbar.org

March 27, 2013 • Volume 52, No. 13 - nmbar.org

Transcription

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