12/16 - State Bar

Transcription

12/16 - State Bar

December 16, 2015 • Volume 54, No. 50
Inside This Issue
Table of Contents..................................................... 3
2016 Licensing Notification................................... 4
January Solo and Small Firm Section
Luncheon Features Valerie Plame......................... 5
New Roehl Circle of Honor Inductees................. 7
A Message from Your State Bar President
Martha Chicoski: The Year in Review.................. 8
Clerk’s Certificates................................................. 12
Ethics Advisory Opinions
2015-01: Lawyer’s Ability to Communicate
Directly with Former Managerial
Employees of Opposing Party........................ 16
Rules/Orders
No. 04-2015-718:
In the Matter of John James D’Amato............ 17
No. 09-2014-697:
In the Matter of Jason S. Montclare............... 17
From the New Mexico Court of Appeals
2015-NMCA-088, No. 33,409: State of New
Mexico, ex rel., Children, Youth and Families
Department v. Casey J...................................... 18
2015-NMCA-089, No. 33,287:
State v. Bernard................................................. 27
Vermillion, by Andrea Cermanski
The William and Joseph Gallery, Santa Fe
T
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CIA
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CLE Planner
December 30
December 30
December 29
December 28
December 23
The Cybersleuth’s Guide to the Internet
5.0 G
Wednesday, Dec. 23, 2015 • 9 a.m.-4:15 p.m.
State Bar Center, Albuquerque
$249: Standard Fee
$219: Government and legal services attorneys and, Paralegal Division members
$279: Webcast Fee
Ethicspalooza Redux—Winter 2015 Edition
1.0-6.0 EP
Monday, Dec. 28, 2015 • 9 a.m.-5 p.m.
$38: Standard Fee per course
$46: Webcast Fee per course
Federal Practice Tips and Advice from
U.S. Magistrate Judges
2.0 G
1.0 EP
Tuesday, Dec. 29, 2015 • 1-4:15 p.m.
$145: Standard Fee
$159: Webcast Fee
2016 Legislative Preview
2.0 G
with Dick Minzner, Rep. Antonio “Moe” Maestas, (D-Bernalillo)
and Nate Gentry (R- Bernalillo)
Wednesday, Dec. 30, 2015 • 9:30-11:30 a.m.
$99: Standard Fee
$109: Webcast Fee
Professional Liability Insurance:
What You Need to Know
Wednesday, Dec. 30, 2015 • 1-4:15 p.m.
$145: Standard Fee
$159: Webcast Fee
Full course agendas available online. Register online at www.nmbar.org or call 505-797-6020.
CENTER FOR LEGAL EDUCATION
2
1.0 EP
featuring Carole Levitt and Mark Rosch, Internet for Lawyers
Bar Bulletin - December 16, 2015 - Volume 54, No. 50
3.0 EP
Table of Contents
Officers, Board of Bar Commissioners
Mary Martha Chicoski, President
J. Brent Moore, President-Elect
Scotty A. Holloman, Vice President
Dustin K. Hunter, Secretary-Treasurer
Erika E. Anderson, Immediate Past President
Board of Editors
Maureen S. Moore, Chair
Jamshid Askar
Nicole L. Banks
Alex Cotoia
Kristin J. Dalton
Notices ..................................................................................................................................................................4
Legal Education Calendar...............................................................................................................................6
New Roehl Circle of Honor Inductees.........................................................................................................7
A Message from Your State Bar President: The Year in Review...........................................................8
Writs of Certiorari...............................................................................................................................................9
Court of Appeals Opinions List....................................................................................................................11
Clerk’s Certificates............................................................................................................................................12
Recent Rule-Making Activity........................................................................................................................15
Ethics Advisory Opinions
2015-01: Lawyer’s Ability to Communicate Directly with
Former Managerial Employees of Opposing Party.................................................................. 16
Rules/Orders
No. 04-2015-718: In the Matter of John James D’Amato, Esq.................................................17
No. 09-2014-697: In the Matter of Jason S. Montclare, Esq......................................................17
Curtis Hayes
Bruce Herr
Andrew Sefzik
Mark Standridge
Carolyn Wolf
State Bar Staff
Executive Director Joe Conte
Communications Coordinator
Evann Kleinschmidt
505-797-6087 • [email protected]
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
505-797-6058 • [email protected]
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2015, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
Email: [email protected]. • www.nmbar.org
December 16, 2015, Vol. 54, No. 50
Opinions
2015-NMCA-088, No. 33,409:
State of New Mexico, ex rel., Children, Youth and Families Department v. Casey J........18
2015-NMCA-089, No. 33,287: State v. Bernard.............................................................................27
Advertising.........................................................................................................................................................34
State Bar Workshops
Meetings
December
January
18
Family Law Section BOD,
9 a.m., teleconference
6
Divorce Options Workshop
6 p.m., State Bar Center, Albuquerque
18
Trial Practice Section BOD,
Noon, State Bar Center
6
Civil Legal Clinic
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room
Albuquerque
22
Intellectual Property Law Section
BOD, Noon, Lewis Roca Rothgerber,
Albuquerque
24
Natural Resources, Energy and
Environmental Law Section BOD,
Noon, teleconference
25
Immigration Law Section BOD,
Noon, teleconference
12
Civil Legal Clinic for Veterans
9–11 a.m., New Mexico Veterans Memorial,
Albuquerque
20
Family Law Clinic
10 a.m.–1 p.m., Second Judicial District
Court, Albuquerque
27
Consumer Debt/Bankruptcy Workshop 6
p.m., State Bar Center, Albuquerque
Cover Artist: Andrea Joy Cermanski is an artist who lives and works in Santa Fe. She has been working in acrylic and
encaustic for more than 19 years and has a bachelor’s degreein Art History and a Masters in Art Education. Cermanski
has exhibited her work in five solo and nine group shows, including Feminists Under Forty, which was curated by Judy
Chicago. She is featured in E. Ashley Rooney’s Contemporary Art of the Southwest (2014), and has numerous collectors
around the country, including two corporate collections. She is currently represented by galleries in Santa Fe and San
Jose del Cabo, Mexico. View more of her work online at http://www.santafemodernpainter.com/.
3
Notices
Court News
Court of Appeals
Announcement of Vacancy
A vacancy on the Court of Appeals will
exist as of Jan. 1, 2016, due to the retirement
of Hon. Cynthia Fry, effective Dec. 31. The
chambers for this position will be in Santa
Fe. Inquiries regarding the details or assignment of this judicial vacancy should be
directed to the administrator of the Court.
Alfred Mathewson, chair of the Appellate
Court Judicial Nominating Commission, invites applications for this position from lawyers who meet the statutory qualifications in
Article VI, Section 28 of the New Mexico
Constitution. Applications may be obtained
from the Judicial Selection website: www.
lawschool.unm.edu/judsel/application.php.
The deadline for applications is 5 p.m., Jan.
19, 2016. Applicants seeking information
regarding election or retention if appointed
should contact the Bureau of Elections in the
Office of the Secretary of State. The Appellate
Court Judicial Nominating Commission will
meet beginning at 9 a.m., Jan. 27, 2016, to
interview applicants for the position at the
Supreme Court Building in Santa Fe. The
Commission meeting is open to the public
and those who want to comment on any of
the candidates will have an opportunity to
be heard.
U.S. District Court for the
District of New Mexico
Court Closure
The U.S. District Court for the District
of New Mexico will close at 1 p.m. on Dec.
24 through Dec. 25, 2015 for the Christmas holiday. Court will resume on Dec.
28. After-hours access to CM/ECF will
remain available as regularly scheduled.
Stay current with the U.S. District Court
for the District of New Mexico by visiting
www.nmd.uscourts.gov/.
Investiture of U.S. Magistrate
Judge Laura Fashing
Hon. Laura Fashing will be sworn in as
U.S. Magistrate Judge for the U.S. District
Court for the District of New Mexico, at
4 p.m., Jan. 15, 2016, in the Rio Grande
Courtroom, third floor, of the Pete V.
Domenici U.S. Courthouse, 333 Lomas
Boulevard NW, Albuquerque. A reception hosted by the Federal Bench and Bar
of the United States District Court for
the District of New Mexico, will follow
from 6 to 8:30 p.m., at the Albuquerque
Country Club, 601 Laguna Boulevard
4
Professionalism Tip
Lawyer’s Preamble
As a lawyer, I will strive to make our system of justice work fairly and efficiently.
In order to carry out that responsibility, I will comply with the letter and spirit
of the disciplinary standards applicable to all lawyers, and I will also conduct
myself in accordance with the Creed of Professionalism when dealing with
my client, opposing parties, their counsel, the courts, and any other person
involved in the legal system, including the general public.
S.W. All members of the bench and bar
are invited to attend; however, reservations
are requested. R.S.V.P. to 505-348-2001 or
[email protected].
U.S. Courts Library
Holiday Open House
The U.S. Courts Library will host a
holiday open house from 10 a.m. to 5 p.m.
on Dec. 17. The Library is on the third floor
of the Pete V. Domenici U.S. Courthouse,
333 Lomas Ave., Albuquerque. State and
Federal Bar members are welcome to stop
by to meet the staff, enjoy some cookies
and punch, peruse the 30,000-plus volume
collection and discover how the Library
can become an integral part of legal
research teams. Usual hours of operation
are 8 a.m.–noon and 1 to 5 p.m., Monday
through Friday. For more information, call
505-348-2135.
State Bar News
Attorney Support Groups
• Dec. 21, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (the group
meets the third Monday of the month.)
• Jan. 4, 2016, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (the group
meets the first Monday of the month.)
• Jan. 11, 2016,, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, King Room in the Law
Library (the group meets on the second
Monday of the month). To increase
access, teleconference participation is
now available. Dial 1-866-640-4044 and
enter code 7976003#.
For more information, contact Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
2016 Budget Disclosure
Challenge Expenditures
Using the form provided on the last
page of the budget disclosure document,
submit written challenges on or before
noon, Dec. 24, 2015, to: Executive Director Joe Conte, State Bar of New Mexico,
PO Box 92860, Albuquerque, NM 87199.
Challenges may also be delivered in person
to the State Bar Center, 5121 Masthead
NE, Albuquerque; or emailed to jconte@
nmbar.org. The budget disclosure document is available in its entirety on the State
Bar website at www.nmbar.org.
2016 Licensing Notification
Due by Dec. 31
2016 State Bar licensing fees and certifications are due Dec. 31, 2015, and must
be completed by Feb. 1, 2016, to avoid
non-compliance and related late fees.
Complete annual licensing requirements
at www.nmbar.org. Payment by credit
and debit card are available (will incur a
service charge). For more information,
call 505-797-6083 or email license@
nmbar.org. For help logging in or other
website troubleshooting, call 505-7976086 or email [email protected].
Those who have already completed their
licensing requirements should disregard
this notice.
Bankruptcy Law Section
Winter Social
The Bankruptcy Law Section is hosting a winter social event from 5 to 7 p.m.,
Dec. 16, at Soul and Vine, 109 Gold Ave.
SW, Albuquerque. There will be buffet
appetizers and one drink ticket available
per attendee. The event is free to section
members. No R.S.V.P. required.
Board of Bar Commissioners
Election Results
The 2015 election of commissioners
for the Board of Bar Commissioners
in the First Bar Commissioner District
(Bernalillo County) was held Nov. 30.
The results are as follows: Joshua A.
Allison, Hon. Kevin L. Fitzwater (ret.),
Clara Moran and Benjamin I. Sherman.
No nomination petitions were received
for the vacancy in the Third Bar Commissioner District (Los Alamos, Rio
Arriba, Sandoval and Santa Fe counties).The Board will appoint a member
from that district. The Second District
(Cibola, McKinley, San Juan and Valencia
counties) and Fifth District (Curry, DeBaca, Quay and Roosevelt counties) were
uncontested and Joseph F. Sawyer and
Wesley O. Pool are elected by acclamation
to those districts, respectively.
Committee on Women and
the Legal Profession
Location Needed to Store
Professional Clothing Closet
Since 2010, the Committee has sponsored
a Professional Clothing Closet which makes
gently used professional attire available to
members of the State Bar, law students,
paralegals and clients. Due to an office move,
the closet will need a new home in 2016. For
more information or to volunteer space,
contact Co-chair DeAnza Valencia Sapien
at [email protected].
Indian Law Section
Achievement Award Winners
Announced
The Indian Law Section has selected
Michael Gross and C. Bryant Rogers to
receive the 2015 Achievement Award.
They were chosen for their outstanding contributions to the field of Indian
law and work in advocating for Native
American communities and advancing
the principles of tribal self-governance
and self-determination. Presentation of
the Achievement Awards will take place
in early 2016.
Natural Resources, Energy and
Environmental Law Section
Greg J. Nibert Chosen for
2015 Lawyer of the Year Award
The Natural Resources, Energy and
Environmental Section has chosen Greg
J. Nibert to receive the 2015 “NREEL
Lawyer of the Year” award. Nibert will
receive the award at 11:43 a.m. on Dec. 18
at the State Bar Center during the Section’s
annual CLE program. Nibert is a native
son of Roswell where he has practiced
with Hinkle Shanor LLP since 1983. He
was selected for the award based of his
service to oil and gas law, his devotion
to the NREEL Section and the Rocky
Mountain Mineral Law Foundation and
his outstanding professionalism in the
practice of law. He is a past chair of the
NREEL Section. For more information
about the award and Nibert, visit www.
nmbar.org > About Us > Sections >
NREEL.
Featured
Member Benefit
Solo and Small Firm Section
Lunch Meeting and Presentation
Valerie Plame, respected former intelligence agent, has recently returned from
assignment in Jordan and will speak on the
international refugee situation, ISIS, Edward Snowden and other national security
issues and more when she presen ts at the
Solo and Small Firm Section luncheon at
noon, Jan. 19, at the State Bar Center. The
luncheon is free and open to all members
of the bench and bar. Lunch is provided to
those who R.S.V.P. to Evann Kleinschmidt
at [email protected] Section
has scheduled exciting and current speakers through April 2016:
• Feb. 16, 2016: Randi McGinn
• March 15, 2016: Legislative session
review with State Sen. Mike Sanchez
• April 19, 2016: “The Emerging Future
of Legal Relationships with Cuba” with
David Serna and Leon Encinias
UNM
Law Library
Hours Through Jan. 10, 2016
Building & Circulation
Monday–Thursday Friday
Saturday
Sunday
Reference
Monday–Friday
Saturday–Sunday
Closures
Dec. 23–Jan. 3, 2016
8 a.m.–8 p.m.
8 a.m.–6 p.m.
10 a.m.–6 p.m.
Noon–6 p.m.
9 a.m.–6 p.m.
Closed
to organizations that provide legal services to persons of limited means in New
Mexico of $500/year, or some combination
thereof, and to so certify annually when
renewing State Bar membership. Money
contributed to IJP qualifies for credit
toward the pro bono goal under this rule.
Visit http://lawschool.unm.edu/alumni/
common/docs/giving-form-2014-15.pdf
to download the gift form. Make checks
payable to UNM Foundation, memo line
“Barbara Bergman Fund – for IJP only.”
UNM School of Law–Office of Advancement, 1117 Stanford, N.E. MSC11-6070, 1
University of New Mexico, Albuquerque,
NM 87131-0001.
continued on page 7
Innocence and Justice Project
Donations Requested
The ABA Retirement Funds Program (the
“Program”) provides affordable 401(k) plans
with no out-of-pocket expenses exclusively to
law firms of all sizes, even solos.
The Program offers a broad range of retirement plans, full-service administration, and
professional fiduciary services.
Contact the ABA Retirement Funds Program at
800-826-8901 or visit www.abaretirement.
com for more information and a prospectus.
Contributions to the New Mexico
Innocence and Justice Project are tax
deductible and count toward the financial
contribution aspect of the pro bono rules
governing the State Bar. The Innocence
and Justice Project at UNM School of Law
is a resource for persons convicted in state
courts who have a meritorious claim of
factual innocence. For more information,
visit http://lawschool.unm.edu/ijp/. Rule
24-108 NMRA of the Rules Governing
the State Bar require at least 50 hours
pro bono legal services each year or for
members to make a financial contribution
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org > for Members >
Lawyers/Judges Asswistance
5
Legal Education
December
16
Drafting and Reviewing
Commercial Leases, Part 2 of 2
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
16
Law Practice Succession—A Little
Thought Now, A Lot Less Panic
Later
2.0 EP
Live Seminar and Webcast
505-797-6020
www.nmbar.org
17
Talking ‘Bout My Generation:
Professional Responsibility
Dilemmas Among Generations
3.0 EP
505-797-6020
www.nmbar.org
17
What NASCAR, Jay-Z and The
Jersey Shore Teach About Attorney
Ethics
3.0 EP
505-797-6020
www.nmbar.org
17–18 Ethics & Conflicts with Clients,
Parts 1–2
2.0 EP
505-797-6020
www.nmbar.org
18
Navigating New Mexico Public
Land Issues
5.5 G, 1.0 EP
505-797-6020
www.nmbar.org
6
18
Last Chance—The Best of the Best
Seminar
3.7 G, 2.0 EP
Albuquerque and Santa Fe
New Mexico Trial Lawyers’
Foundation
505-243-6003
www.nmtla.org
21
Trials of the Century
5.0 G, 1.0 EP
505-797-6020
www.nmbar.org
22
Practice Management, the Cloud
and Your Firm (2014)
3.0 G
Video Replay
505-797-6020
www.nmbar.org
23
The Cybersleuth’s Guide to the
Internet
5.0 G, 1.0 EP
505-797-6020
www.nmbar.org
21
Drafting Stock Purchase
Agreements
1.0 G
505-797-6020
www.nmbar.org
28
22
2015 Health Law Symposium
4.5 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
29
22
Legal Writing-From Fiction to Fact:
The Surprisingly Useful Things
Legal Writers Can Learn from
Fiction
2.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
22
Legal Writing-From Fiction to Fact:
Writing the Facts and Arguments in
Litigation
2.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
Ethicspalooza Redux—Winter 2015
Edition
1.0–6.0 EP
505-797-6020
www.nmbar.org
Federal Practice Tips and Advice
from U.S. Magistrate Judges
2.0 G, 1.0 EP
505-797-6020
www.nmbar.org
29
2016 Legislative Preview
2.0 G
505-797-6020
www.nmbar.org
30
Professional Liability Insurance:
What You Need to Know
3.0 EP
505-797-6020
www.nmbar.org
continued from page 5
Other Bars
New Mexico Women’s
Bar Association
2016 Officers and Board
The 2016 election for the New Mexico
Women’s Bar Association recently ended.
Serving as officers for 2016 are President
Barbara Koenig, Vice-President Yasmin
Dennig, Secretary Kate Southard, Treasurer Amie Nelson, Compliance Officer
Lindsay Griffel and directors at large
DeAnza V. Sapien and Sharon Shaheen.
New board members Amy Glasser, Amy
Sirignano, Andrea Harris, Christina
Adams and Michelle Huff join existing
board members Deborah Seligman, Hannah Best, Lori Martinez, Margaret Branch,
Peggy Graham, Traci Olivas, Christina
West, and Past President Louren Oliveros.
Annual membership dues may be paid
with the annual State Bar licensing renewal
or at www.nmbar.org > for Members >
Other Bars.
Accelerated Bar Bulletin
Holiday Deadlines
Due to upcoming holiday closures, the
Bar Bulletin has accelerated printing
schedules. Submit notices by Dec. 17
for the Dec. 30 issue and by Dec. 22 for
the Jan. 6, 2016, issue. Submit content
to [email protected].
New Roehl Circle of Honor Inductees
Jerry Roehl, second from left, stands with the new inductees into the Roehl Circle of Honor for Trial Lawyers. Inducted this year
are, from left, Jerry Wertheim, William C. Madison and Michael Campbell. Wertheim practices with Jones, Snead, Wertheim
& Clifford PA in Santa Fe. His practice concentrates in complex civil litigation, estate planning, state taxation and commercial
transactions. Madison practices with Madison & Mroz PA in Albuquerque where his practice includes defending individuals and
corporations in a full range of civil cases. Campbell’s practice at Campbell Trial Law LLC in Santa Fe concentrates on oil and gas,
antitrust and environmental litigation. Each year, the photos of the new inductees and the names of the inductees from the previous
year are hung in the lobby of the State Bar Center.
7
A Message from Your State Bar President:
The Year in Review
Dear Members of the State Bar of New Mexico,
As I conclude my term as State Bar President, I write this final message and brief recap of some
of the Board of Bar Commissioner’s 2015 activities with somewhat mixed emotions. I am honored to have had the opportunity to represent our members for the past nine years while on the
Young Lawyers Division Board and the BBC. And while I’m happy to pass the baton to our 2016
President Brent Moore, I find myself wondering “what am I going to do with all my free time?”
This past year, the State Bar has seen several major changes, including the inception of admission on motion in New Mexico; taking over the administration of the IOLTA program, and
the exploration and creation of a “low bono” program, entitled Entrepreneurs in Community
Lawyering. ELC will help provide affordable legal services to middle-income New Mexicans,
while also assisting new attorneys with transitioning from law school to solo practice. I encourage all State Bar members to support
access to justice for those who may not be able to afford traditional full-representation legal services. Involvement with and support
of this program is a win-win for both New Mexicans and those just entering our profession.
During 2015, the BBC continued to monitor and evaluate State Bar programming, financing, staffing and other issues relevant to our
members. We appreciate your feedback and we encourage you to reach out to BBC members to let us know how we may better meet
the needs of our profession. Our Annual Meeting and CLE at Sea once again provided fun and low-key opportunities for networking
and camaraderie.
Many thanks to Joe Conte, the executive team and the State Bar staff for their hard work in organizing and executing State Bar events
and programs. Without a doubt, they make our jobs as Commissioners easier and more enjoyable. Words cannot adequately express
my appreciation for all that they do.
Thank you to the members of the BBC for their confidence in me, as well as their contributions behind the scenes. The work of the
BBC is a team effort; it has been a privilege serving on the Board with them over the past several years.
Congratulations to our 2016 officers: President Brent Moore, President-Elect Scotty Holloman, Vice-President Dustin Hunter and
Secretary-Treasurer Jerry Dixon. I have every confidence that they will continue to diligently represent our members.
On behalf of the BBC, thank you to our outgoing Board members for their bar service: Immediate Past President Erika Anderson,
Raynard Struck, Judge Jim Hall (ret.), George Kraehe, Danny Jarrett, Ken Statler and Eileen Casadevall. We will miss you and we
appreciate the time that you have given to the BBC.
A very big thank you to my family back on the East Coast for their continued support as I worked my way up the State Bar leadership
track. While State Bar commitments rooted me to New Mexico longer than they may have liked, I always heard “congratulations”
before being asked “how much longer?!?”—I truly appreciate their encouragement during my New Mexico adventure. Another big
thank you to my husband, Jason, and our “monkey dogs” for their patience with the long hours and trips that have kept me away over
the past couple of years. I look forward to spending more time at home with them.
And, lastly, thanks to all of you – our State Bar members. I am humbled and grateful for the opportunity to represent you and our
profession. I wish everyone a happy and safe holiday season! Best wishes for 2016.
Sincerely,
Martha Chicoski, President
State Bar of New Mexico
8
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 November 20, 2015
Petitions for Writ of Certiorari Filed and Pending:
No. 35,266
Date Petition Filed
No. 35,603 State v. County of ValenciaCOA 33,903 11/19/15
No. 35,602 State v. Astorga
COA 32,374 11/19/15
No. 35,599 Tafoya v. Stewart
12-501 11/19/15
No. 35,598 Fenner v. N.M. Taxation and
Revenue Dept.
COA 34,365 11/18/15
No. 35,596 State v. Lucero
COA 34,360 11/10/15
No. 35,595 State v. Axtolis
COA 33,664 11/10/15
No. 35,594 State v. Hernandez
COA 33,156 11/10/15
No. 35,593 Quintana v. Hatch
12-501 11/06/15
No. 35,591 State v. Anderson
COA 32,663 11/06/15
No. 35,588 Torrez v. State
12-501 11/04/15
No. 35,587 State v. Vannatter
COA 34,813 11/04/15
No. 35,585 State v. Para
COA 34,577 11/04/15
No. 35, 584 State v. Hobbs
COA 32,838 11/03/15
No. 35,582 State v. Abeyta
COA 33,485 11/02/15
No. 35,581 Salgado v. Morris
12-501 11/02/15
No. 35,586 Saldana v. Mercantel
12-501 10/30/15
No. 35,580 State v. Cuevas
COA 32,757 10/30/15
No. 35,579 State v. Harper
COA 34,697 10/30/15
No. 35,578 State v. McDaniel
COA 31,501 10/29/15
No. 35,573 Greentree Solid Waste v.
County of Lincoln
COA 33,628 10/28/15
No. 35,576 Oakleaf v. Frawner
12-501 10/23/15
No. 35,575 Thompson v. Frawner
12-501 10/23/15
No. 35,555 Flores-Soto v. Wrigley
12-501 10/09/15
No. 35,554 Rivers v. Heredia
12-501 10/09/15
No. 35,540 Fausnaught v. State
12-501 10/02/15
No. 35,523 McCoy v. Horton
12-501 09/23/15
No. 35,522 Denham v. State
12-501 09/21/15
No. 35,515 Saenz v.
Ranack Constructors
COA 32,373 09/17/15
No. 35,495 Stengel v. Roark
12-501 08/21/15
No. 35,480 Ramirez v. Hatch
12-501 08/20/15
No. 35,479 Johnson v. Hatch
12-501 08/17/15
No. 35,474 State v. Ross
COA 33,966 08/17/15
No. 35,422 State v. Johnson
12-501 08/10/15
No. 35,466 Garcia v. Wrigley
12-501 08/06/15
No. 35,454 Alley v. State
12-501 07/29/15
No. 35,440 Gonzales v. Franco
12-501 07/22/15
No. 35,422 State v. Johnson
12-501 07/17/15
No. 35,416 State v. Heredia
COA 32,937 07/15/15
No. 35,415 State v. McClain
12-501 07/15/15
No. 35,399 Lopez v. State
12-501 07/09/15
No. 35,374 Loughborough v. Garcia
12-501 06/23/15
No. 35,375 Martinez v. State 12-501 06/22/15
No. 35,372 Martinez v. State
12-501 06/22/15
No. 35,370 Chavez v. Hatch
12-501 06/15/15
No. 35,369 Serna v. State
12-501 06/15/15
No. 35,353 Collins v. Garrett
COA 34,368 06/12/15
No. 35,335 Chavez v. Hatch
12-501 06/03/15
No. 35,371 Pierce v. Nance
12-501 05/22/15
No. 35,271 Cunningham v. State
12-501 05/06/15
No. 35,261
No. 35,159
No. 35,106
No. 35,097
No. 35,099
No. 35,068
No. 34,937
No. 34,932
No. 34,907
No. 34,680
No. 34,777
No. 34,790
No. 34,775
No. 34,706
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Guy v.
N.M. Dept. of Corrections
12-501
Trujillo v. Hickson
12-501
Jacobs v. Nance
12-501
Salomon v. Franco
12-501
Marrah v. Swisstack
12-501
Keller v. Horton
12-501
Jessen v. Franco
12-501
Pittman v.
N.M. Corrections Dept.
12-501
Gonzales v. Sanchez
12-501
Cantone v. Franco
12-501
Wing v. Janecka
12-501
State v. Dorais
COA 32,235
Venie v. Velasquz
COA 33,427
State v. Merhege
COA 32,461
Camacho v. Sanchez
12-501
Benavidez v. State
12-501
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Utley v. State
12-501
04/30/15
04/23/15
03/12/15
02/04/15
01/26/15
12/11/14
11/25/14
10/20/14
10/16/14
09/11/14
07/14/14
07/02/14
06/27/14
06/19/14
05/13/14
02/25/14
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Certiorari Granted but Not Yet Submitted to the Court:
(Parties preparing briefs) Date Writ Issued
No. 33,725 State v. Pasillas
COA 31,513 09/14/12
No. 33,877 State v. Alvarez
COA 31,987 12/06/12
No. 33,930 State v. Rodriguez
COA 30,938 01/18/13
No. 34,363 Pielhau v. State Farm
COA 31,899 11/15/13
No. 34,274 State v. Nolen
12-501 11/20/13
No. 34,443 Aragon v. State
12-501 02/14/14
No. 34,522 Hobson v. Hatch
12-501 03/28/14
No. 34,582 State v. Sanchez
COA 32,862 04/11/14
No. 34,694 State v. Salazar
COA 33,232 06/06/14
No. 34,669 Hart v. Otero County Prison 12-501 06/06/14
No. 34,650 Scott v. Morales
COA 32,475 06/06/14
No. 34,784 Silva v. Lovelace Health
Systems, Inc.
COA 31,723 08/01/14
No. 34,728 Martinez v. Bravo
12-501 10/10/14
No. 34,812 Ruiz v. Stewart
12-501 10/10/14
No. 34,830 State v. Mier
COA 33,493 10/24/14
No. 34,929 Freeman v. Love
COA 32,542 12/19/14
No. 35,063 State v. Carroll
COA 32,909 01/26/15
No. 35,016 State v. Baca
COA 33,626 01/26/15
No. 35,130 Progressive Ins. v. Vigil COA 32,171 03/23/15
No. 35,101 Dalton v. Santander
COA 33,136 03/23/15
No. 35,148 El Castillo Retirement Residences v.
Martinez
COA 31,701 04/03/15
No. 35,198 Noice v. BNSF
COA 31,935 05/11/15
No. 35,183 State v. Tapia
COA 32,934 05/11/15
No. 35,145 State v. Benally
COA 31,972 05/11/15
No. 35,121 State v. Chakerian
COA 32,872 05/11/15
Bar Bulletin - December 16, 2015 - Volume 54, No. 50 9
Writs of Certiorari
No. 35,116
No. 34,949
No. 35,298
No. 35,297
No. 35,296
No. 35,286
No. 35,255
No. 35,249
No. 35,248
No. 35,214
No. 35,213
No. 35,279
No. 35,289
No. 35,290
No. 35,349
No. 35,302
No. 35,318
No. 35,386
No. 35,278
No. 35,398
No. 35,427
No. 35,446
No. 35,451
No. 35,438
No. 35,426
No. 35,499
No. 35,456
No. 35,437
No. 35,395
State v. Martinez
COA 32,516 05/11/15
State v. Chacon
COA 33,748 05/11/15
State v. Holt
COA 33,090 06/19/15
Montano v. Frezza
COA 32,403 06/19/15
State v. Tsosie
COA 34,351 06/19/15
Flores v. Herrera COA 32,693/33,413 06/19/15
State v. Tufts
COA 33,419 06/19/15
Kipnis v. Jusbasche
COA 33,821 06/19/15
AFSCME Council 18 v. Bernalillo
County Comm.
COA 33,706 06/19/15
Montano v. Frezza
COA 32,403 06/19/15
Hilgendorf v. Chen
COA 33056 06/19/15
Gila Resource v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
NMAG v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
Olson v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
Phillips v. N.M. Taxation and
Revenue Dept.
COA 33,586 07/17/15
Cahn v. Berryman
COA 33,087 07/17/15
State v. Dunn
COA 34,273 08/07/15
State v. Cordova
COA 32,820 08/07/15
Smith v. Frawner
12-501 08/26/15
Armenta v.
A.S. Homer, Inc.
COA 33,813 08/26/15
State v.
Mercer-Smith
COA 31,941/28,294 08/26/15
State Engineer v.
Diamond K Bar Ranch COA 34,103 08/26/15
State v. Garcia
COA 33,249 08/26/15
Rodriguez v.
Brand West Dairy COA 33,104/33,675 08/31/15
Rodriguez v.
Brand West Dairy COA 33,675/33,104 08/31/15
Romero v.
Ladlow Transit Services COA 33,032 09/25/15
Haynes v. Presbyterian
Healthcare Services
COA 34,489 09/25/15
State v. Tafoya
COA 34,218 09/25/15
State v. Bailey
COA 32,521 09/25/15
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing COA 30,196 08/28/13
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 10/28/13
No. 34,146 Madrid v.
Brinker Restaurant
COA 31,244 12/09/13
No. 34,093 Cordova v. Cline
COA 30,546 01/15/14
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297 03/26/14
No. 34,613 Ramirez v. State
COA 31,820 12/17/14
No. 34,798 State v. Maestas
COA 31,666 03/25/15
No. 34,630 State v. Ochoa
COA 31,243 04/13/15
No. 34,789 Tran v. Bennett
COA 32,677 04/13/15
No. 34,997 T.H. McElvain Oil & Gas v.
Benson
COA 32,666 08/24/15
10
No. 34,993
No. 34,726
No. 34,826
No. 34,866
No. 35,049
No. 35,035
No. 35,478
No. 34,946
No. 34,945
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
Deutsche Bank v.
Johnston
COA 31,503
State v. Trammel
COA 31,097
State v. Yazzie
COA 32,476
State v. Surratt
COA 32,881
State v. Stephenson
COA 31,273
Morris v. Brandenburg
COA 33,630
State v. Kuykendall
COA 32,612
State v. Kuykendall
COA 32,612
08/24/15
08/24/15
08/26/15
08/26/15
10/13/15
10/15/15
10/26/15
11/12/15
11/12/15
Opinion on Writ of Certiorari:
No. 34,549
No. 34,546
No. 34,974
No. 34,637
No. 34,548
Date Opinion Filed
State v. Nichols
COA 30,783 11/19/15
N.M. Dept. Workforce Solutions v.
Garduno
COA 32,026 11/19/15
Moses v. Skandera
COA 33,002 11/12/15
State v. Serros
COA 31,975 11/12/15
State v. Davis
COA 28,219 10/19/15
Petition for Writ of Certiorari Denied:
No. 35,568
No. 35,567
No. 35,562
No. 33,979
No. 34,881
No. 35,559
No. 35,511
No. 35,558
No. 35,341
No. 35,269
No. 35,217
No. 35,506
No. 35,403
No. 35,552
No. 35,550
No. 35,546
No. 35,545
No. 35,544
No. 35,452
No. 35,411
No. 35,542
No. 35,539
No. 35,538
No. 35,537
No. 35,535
No. 35,532
No. 35,526
No. 35,525
No. 35,520
No. 35,519
No. 35,518
No. 35,412
No. 35,368
Date Order Filed
State v. Aranzola
COA 32,505 11/17/15
State v. Ruiz
COA 32,992 11/17/15
Scott v. New
COA 34,556 11/17/15
State v. Suskiewich
COA 33,979 11/17/15
Paz v. Horton
12-501 11/17/15
State v. Shelby
COA 34,682 11/10/15
Brinsfield v. Hatch
12-501 11/10/15
State v. Hernandez
COA 33,525 11/10/15
Martin v. State
12-501 11/10/15
Peterson v. Ortiz
12-501 11/10/15
Hernandez v. Horton
12-501 11/10/15
Alonso v. Hatch
12-501 11/05/15
Blackwell v. Horton
12-501 11/10/15
Spurlock v. N.M. Board of
Examiners for Architects COA 34,833 11/05/15
State v. Ben
COA 33,921 11/05/15
State v. Lefthand
COA 33,396 11/05/15
State v. Lemanski
COA 33,846 11/05/15
State v. Trujeque
COA 34,519 11/05/15
Kirk v. Mercantel
12-501 11/05/15
Tayler v. State
12-501 11/05/15
City of Roswell v. Marin COA 34,286 10/23/15
State v. Herrera
COA 33,255 10/23/15
State v. Gallegos
COA 34,689 10/23/15
State v, Reyes
COA 34,700 10/23/15
State v. Herrera COA 33,078/33,255 10/23/15
Woody Investments v.
Sovereign Eagle
COA 32,830 10/23/15
State v. Mitchell
COA 34,573 10/21/15
State v. Ashley
COA 32,974 10/21/15
Deutsche Bank v. Huerta COA 34,337 10/21/15
State v. York
COA 33,462 10/21/15
State v. Yanke
COA 34,474 10/21/15
Peterson v. LeMaster
12-501 10/21/15
Griego v. Horton
12-501 10/21/15
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Unublished Opinions
Effective December 4, 2015
No. 33058 9th Jud Dist Curry PQ-12-02, M COLE v A GARCIA (affirm)
12/01/2015
No. 34448 5th Jud Dist Lea CR-13-3, CR-13-446, CR-13-638, CR-13-411, CR-13-569
12/01/2015
STATE v J VAUGHN (reverse and remand)
No. 33910 5th Jud Dist Chaves CR-13-168, STATE v G RABY (reverse and remand)
12/01/2015
No. 34732 13th Jud Dist Valencia JQ-13-19, CYFD v STEPHANIE G (affirm)
12/01/2015
No. 34412 1st Jud Dist Santa Fe CV-13-1364, G SCHWARTZ v NM MEDICAL BOARD (affirm)
12/02/2015
No. 34886 2nd Jud Dist Bernalillo JQ-13-138, CYFD v CARL G (affirm)
12/02/2015
No. 34837 2nd Jud Dist Bernalillo CV-11-5056, CV-08-338, R AGUILAR v L FILANOSKY (dismiss) 12/02/2015
No. 34705 2nd Jud Dist Bernalillo CR-14-3206, STATE v D ABEYTA (affirm)
12/03/2015
No. 34413 9th Jud Dist Curry CR-12-692, STATE v D JAMES (affirm)
12/03/2015
No. 34522 12th Jud Dist Otero SI-15-15, STATE v W SEARS (dismiss)
12/03/2015
No. 34729 2nd Jud Dist Bernalillo LR-13-48, STATE v I BERRES (affirm)
12/03/2015
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
11
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Dated Nov. 24, 2015
Clerk’s Certificate
of Address and/or
Telephone Changes
Joseph Barrera
Drinker Biddle & Reath LLP
One Logan Square, Suite 2000
Philadelphia, PA 19103
215-988-2492
[email protected]
Laura Oropeza Bird
PO Box 1176
Whittier, CA 90609
505-259-1771
[email protected]
Rosenda Maria Chavez
ChavezLaw, LLC
2327 McNutt Road, Suite A
Sunland Park, NM 88063
575-635-9441
[email protected]
Sarah V. Coffey
Southwest Women’s Law
Center
1410 Coal Avenue SW
Albuquerque, NM 87104
505-244-0502
505-244-0506 (fax)
[email protected]
Steven Gregory DuCharme
Hinkle Shanor LLP
PO Box 1720
119 S. Roselawn Avenue,
Suite 306 (88210)
Artesia, NM 88211
575-746-3505
575-746-6316 (fax)
sducharme@hinklelawfirm.
com
Justine C. Fox-Young
Justine C. Fox-Young,
Attorney at Law
1903B Wyoming Blvd. NE
505-796-8268
[email protected]
12
Sam M. Gill
McCall, Parkhurst
& Horton LLP
717 N. Harwood Street,
9th Floor
Dallas, TX 75201
214-754-9223
214-754-9250 (fax)
[email protected]
Justin W. Miller
Bardacke Allison LLP
PO Box 1808
515 Don Gaspar Avenue
(87505)
Santa Fe, NM 87504
505-386-4100
505-672-7037 (fax)
[email protected]
Kevin A. Graham
N.M. Regulation
& Licensing Dept.
Financial Institutions Division
2550 Cerrillos Road
Santa Fe, NM 87505
505-476-4562
505-476-4670 (fax)
[email protected]
Bridget Lynn Mullins
Office of the Attorney General
111 Lomas Blvd. NW, Suite 300
505-222-9018
[email protected]
Melissa Hailey
Keating Wagner Polidori
Free, PC
1290 Broadway, Suite 600
Denver, CO 80203
303-534-0401
[email protected]
Darius V. Jackson
Cohon Raizes & Regal LLP
208 S. LaSalle Street, Suite 1860
Chicago, IL 60604
312-726-2252
[email protected]
Jessica D. Marshall
Rose L. Brand & Associates, PC
7430 Washington Street NE
505-833-3036
505-833-3040 (fax)
jessica.marshall@roselbrand.
com
Brendan Daniel McDonald
Duran & McDonald, LLC
105 Bryn Mawr Avenue SE
505-463-6297
505-924-2121 (fax)
[email protected]
Paul R. Onuska III
Hinkle Shanor LLP
PO Box 2068
218 Montezuma Avenue
(87501)
Santa Fe, NM 87504
505-982-4554
505-982-8623 (fax)
[email protected]
Khouloud E. Pearson
500 Tenth Street
Alamogordo, NM 88310
575-437-5750
[email protected]
Steven A. Romero
1309 Winkler Avenue
Killeen, TX 76542
254-288-2823
[email protected]
G. Alexander Rossario
PO Box 2021
Las Cruces, NM 88004
305-834-5199
[email protected]
Lara A. Smalls
2540 El Paseo, Bldg. 2
575-528-6149
575-524-6224 (fax)
[email protected]
Denise A. Snyder
Aldridge Pite, LLP
6301 Indian School Rd. NE,
Suite 350
858-750-7601
[email protected]
Ian G. Stoker
City of Albuquerque Legal
Department
One Civic Plaza NW, Room
4015
505-768-4500
[email protected]
Richard W. Sutten
Whitener Law Firm, PA
4110 Cutler Avenue NE
505-242-3333
505-242-3322 (fax)
[email protected]
Samantha Updegraff
PO Box 5800
Mail Stop 0114
505-340-4256
[email protected]
Matthew Urrea
Schlenker & Urrea, LLP
2000 Carlisle Blvd. NE, Suite G
505-244-0090
505-244-0020 (fax)
[email protected]
Karen Howden Weaver
McCarthy Holthus, LLP
6501 Eagle Rock Avenue NE,
Suite A-3
877-369-6122
505-750-9803 (fax)
kweaver@mccarthyholthus.
com
Holly P. Davies
Lorber, Greenfield
& Polito, LLP
3930 E. Ray Road, Suite 260
Phoenix, AZ 85044
602-437-4177
[email protected]
Frank P. Dickson Jr.
500 Rodeo Road, Unit 1014
Santa Fe, NM 87505
[email protected]
A. Blair Dunn
Western Agriculture, Resource
and Business Advocates, LLP
1005 Marquette Avenue NW
505-750-3060
505-226-8500 (fax)
[email protected]
Tara L. Edgmon
PO Box 455
Hillsboro, NM 88042
505-966-6107
[email protected]
Christopher Friedenberg
555 Broadway Blvd. NE,
Suite 201
[email protected]
Dated Dec. 3, 2015
Clerk’s Certificate
of Address and/or
Telephone Changes
Mark W. Allen
Law Office of
Mark W. Allen, LLC
PO Box 90788
6565 Americas Parkway NE,
Suite 920 (87110)
505-750-4190
505-288-3510 (fax)
mallen@markallenlawoffice.
com
Casey A. Barthel
Barthel Law Office
PO Box 2245
Boerne, TX 78006
830-537-3130
[email protected]
Margaret Coffey-Pilcher
Comanche Nation
Entertainment
1016 S.W. C Avenue
Lawton, OK 73501
580-250-3020 Ext. 1007
580-250-3113 (fax)
[email protected]
Louis William Horowitz
Lorber, Greenfield
& Polito, LLP
3930 E. Ray Road, Suite 260
Phoenix, AZ 85044
602-437-4177
[email protected]
Genevieve M. Lawson
PO Box 36676
[email protected]
Deborah L. Moore
5800 Harper Drive NE #708
505-699-9645
[email protected]
James Cort Shackelford
Jefferson Capital Systems, LLC
PO Box 17210
Golden, CO 80402
[email protected]
Shoshanah D. Epstein
Quantum Juridical Solutions
300 Paseo de Peralta, Suite 203
Santa Fe, NM 87501
505-379-5130
[email protected]
Norman D. Ewart
6412 Arnot Street
Houston, TX 77007
713-303-3025
[email protected]
Alexander F. Flores
U.S. Marine Corps
Legal Services Support Section,
Pacific, TSO
PSC 557 Box 2864
FPO AP 96379
[email protected]
Terri Keller
1111 First Street NW
505-842-1440
David Shapiro
1000 Cordova Place #89
Santa Fe, NM 87505
[email protected]
Randy Keith Clark
PO Box 576
755 S. Telshor Blvd.,
Suite R-202 (88011)
575-526-8800
575-526-9800 (fax)
[email protected]
Zachary J. Cook
Zach Cook, LLC
1703 Sudderth Drive #425
Ruidoso, NM 88345
575-258-2202
575-993-5362 (fax)
[email protected]
Allen R. Ferguson Jr.
PO Box 1589
121 Upper Colonias Road
El Prado, NM 87529
575-776-1118
[email protected]
Doreen N. McPaul
Tohono O’odham NationOffice of the Chairman
PO Box 837
Sells, AZ 85634
520-383-2028
520-383-3379 (fax)
doreen.mcpaul@
tonation-nsn.gov
Kameron M. Morris
Social Security AdministrationNational Hearing Center
201 Third Street NW, Suite 400
866-964-1298 Ext. 31837
866-580-1211 (fax)
[email protected]
Coleen O’Leary
Law Offices of the
Public Defender
300 Gossett Drive
Aztec, NM 87410
970-946-8356
[email protected]
Christopher S. Ray
6 Camerada Road
Santa Fe, NM 87508
575-496-7558
[email protected]
Joseph Cooper Gonzales
Eric Ortiz & Associates
510 Slate Street NW
505-720-0070
[email protected]
James Holmes
Holmes PLLC
900 Jackson Street, Suite 260
Dallas, TX 75202
214-520-8292
214-521-9995 (fax)
[email protected]
Alison M. Walcott
([email protected])
Donald A. Walcott
([email protected])
Walcott, Henry & Winston, PC
200 W. Marcy Street, Suite 203
Santa Fe, NM 87501
505-982-9559
Peter A. Robertson
N.M. Corrections Department
1525 Morris Road
Los Lunas, NM 87031
505-383-3318
[email protected]
Laura E. Sanchez-Rivet
Cuddy & McCarthy, LLP
7770 Jefferson Street NE,
Suite 102
505-503-2573
888-977-3816 (fax)
lsanchez-rivet@
cuddymccarthy.com
Cole B. Stinson
PO Box 757
52 Chandler Road (37122)
Mount Juliet, TN 37121
865-386-6876
[email protected]
B. W. Stone
McCarthy & Holthus, LLP
6501 Eagle Rock Avenue NE,
Suite A-3
505-219-4898
505-750-9803 (fax)
[email protected]
13
Susan J. Strelitz
7326 Remcon Circle, Suite 104
El Paso, TX 79912
915-248-1730
915-248-1722 (fax)
[email protected]
Deborah Lee Thuman
PO Box 68
575-644-8892
[email protected]
Rebecca A. Torres
Torres Law Firm, LLC
8220 San Pedro Drive NE,
Suite 500
505-221-6709
[email protected]
Cathryn L. Wallace
Lopez, Dietzel & Perkins, PC
PO Box 1289
1311 N. Grant Street (88061)
Silver City, NM 88062
575-538-2925
575-388-9228 (fax)
[email protected]
David Alfonso Archuleta
PO Box 36946
505-842-1406
[email protected]
14
Michelle Baca
Law Office of Michelle Baca
4101 Indian School Road NE,
Suite 360
505-872-1144
505-872-1155 (fax)
[email protected]
Pilar L. Murray
Murray Law Firm
PO Box 2532
4 San Francisco Road
Ranchos de Taos, NM 87557
575-779-7054
[email protected]
Sandra E. Nemeth
6350 Eubank Blvd. NE #1212
505-314-1320
[email protected]
Sylvain Segal Jr.
10219 Prescott Court NW
[email protected]
Patrick L. Westerfield
Westerfield Law Offices, Ltd.
PO Box 25051, Albuquerque,
NM 87125
7103 Fourth Street NW, Suite
0-3, Los Ranchos, NM 87107
505-265-5665
[email protected]
W. Alan Wright
Kilpatrick Townsend
& Stockton LLP
2001 Ross Avenue, Suite 4400
Dallas, TX 75201
214-922-7131
214-292-9712 (fax)
alan.wright@
kilpatricktownsend.com
Britt Marie Baca-Miller
Law Offices of the
Public Defender
505 Marquette Avenue NW,
Suite 120
505-369-3580
[email protected]
Kathryn Grusauskas
263 West End Road
South Orange, NJ 07079
973-803-2436
[email protected]
Marc C. Hufford
Office of the Second Judicial
District Attorney
Children’s Court Juvenile
Division
5100 Second Street NW
505-222-1160
[email protected]
Jason J. Lewis
Law Office of
Jason J. Lewis LLC
201 Twelfth Street NW
505-244-0950
505-214-5108 (fax)
[email protected]
Amy Sirignano
November 18, 2015
Law Office of
Amy Sirignano, PC
5901J Wyoming Blvd. NE,
Suite 250
505-242-2770
505-242-2774 (fax)
[email protected]
Allison H. Block-Chavez
([email protected])
Patricia Ann Bradley
([email protected])
Kevin D. Hammar
([email protected])
Jason M. Wexler
([email protected])
Aldridge, Hammar, Wexler
& Bradley, PA
1212 Pennsylvania Street NE
505-266-8787
505-255-4029 (fax)
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
Effective December 2, 2015
Pending Proposed Rule Changes
Open for Comment:
Comment Deadline
None to report at this time.
Recently Approved Rule Changes Since
Release of 2015 NMRA:
For 2014 year-end rule amendments that became effective December 31, 2014, and which now appear in the 2015 NMRA, please
see the November 5, 2014, issue of the Bar Bulletin or visit the
New Mexico Compilation Commission’s website at http://www.
nmcompcomm.us/nmrules/NMRuleSets.aspx.
To view all pending proposed rule changes (comment period open or closed),
visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website
at http://www.nmcompcomm.us.
15
Ethics Advisory Opinion
From the State Bar of New Mexico’s Ethics Advisory Committee
Formal Opinion: 2015-01
Topic:
Lawyer’s Ability to Communicate Directly with
Former Managerial Employees of Opposing Party
Rules Implicated:
16-402, 16-403 NMRA
Disclaimer:
The Ethics Advisory Committee of the State Bar of New Mexico
(“Committee”) is constituted for the purpose of advising inquiring
lawyers on the application of the New Mexico Rules of Professional
Conduct in effect at the time the opinion is issued (the “Rules”) to
the specific facts as supplied by the inquiring lawyer or, in some
instances, upon general issues facing members of the bar. The
Committee does not investigate facts presented to it and generally
assumes the facts presented are true and complete. The Committee
does not render opinions on matters of substantive law. Lawyers
are cautioned that should the Rules subsequently be revised or facts
differ from those presented, a different conclusion may be reached
by the Committee. The Committee’s opinions are advisory only,
and are not binding on the inquiring lawyer, the disciplinary board,
or any tribunal. The statements expressed in this opinion are the
consensus of the Committee members who considered the issue.
Question Presented:
May a lawyer have direct (ex parte) contact with a former managerial employee of an opposing party?
Summary Answer:
Yes, a lawyer may communicate directly with former constituents
of an organization; only communication with current constituents is prohibited by the Rules.
Analysis:
Rule 16-402, Communication with person represented by counsel, is the applicable rule. It states:
In representing a client, a lawyer shall not communicate about the
subject of the representation with a person the lawyer knows to
be represented by another lawyer in the matter, unless the lawyer
has the consent of the other lawyer or is authorized to do so by
law or a court order. Except for persons having a managerial
responsibility on behalf of the organization, an attorney is not
prohibited from communicating directly with employees of a
corporation, partnership or other entity about the subject matter
of the representation even though the corporation, partnership
or entity itself is represented by counsel.
The Committee notes that this rule is stated in the present-tense,
prohibiting communication only with those managerial personnel “having” such responsibility on behalf of the organization.
Official Comment 7 to the Rule states in part:
16
In the case of a represented organization, this rule prohibits
communications with a constituent of the organization who
supervises, directs or regularly consults with the organization’s
lawyer concerning the matter or has authority to obligate the
organization with respect to the matter or whose act or omission
in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the
organization’s lawyer is not required for communication with
a former constituent. (emphasis added).
This statement is consistent with, and modeled after, the ABA
Model Rules, Model Rule 4.2, Comment 7. It is also noted that
United States Federal District Court Judge James Browning has
recognized in at least one Memorandum Opinion the propriety
of communicating with former employees under Rule 16-402
NMRA. See Todd v. Montoya, No. CIV 10-0106 JB/WPL, 2011
U.S. Dist. LEXIS 14435 (D.N.M. Jan. 12, 2011).
While the Committee agrees that such communication is permissible, it does caution the attorney to follow the guidelines in
Rule 16-403 when communicating with unrepresented parties.
As the ABA noted in its Formal Opinion 91-359 (1991):
The lawyer should also punctiliously comply with the requirements of Rule 4.3, which addresses a lawyer’s dealings with unrepresented persons. That rule, insofar as pertinent here, requires
that the lawyer contacting a former employee of an opposing
corporate party make clear the nature of the lawyer’s role in the
matter giving occasion for the contact , including the identity of
the lawyer’s client and the fact that the witness’s former employer
is an adverse party.
Finally, it is noted that while still employed, a former managerial
employee may have had confidential communications with the
organization’s attorney and that those communications remain
confidential and should not be requested from the former
employee. It is also not uncommon for former managers to be
contractually constrained by a confidentiality agreement with
their former employer. If the lawyer is aware of the existence of
confidentiality agreement, it would be improper to act in a way to
cause the former managerial employee to breach the agreement.
Conclusion:
For the reasons set forth above, the Committee concludes that a
lawyer may contact former managerial employees of an opposing
party, though he or she should be certain those communications
comply with the rules for communicating with unrepresented
persons and include full disclosure of his or her role in relation
to the former employer. The lawyer must not act in a way that
would cause the former managerial employee to violate any duty
of confidentiality that applies to the matter at hand.
Rules/Orders
From the New Mexico Supreme Court
Before the Disciplinary Board of the
Supreme Court of the State of New Mexico
Before the Disciplinary Board of the
Supreme Court of the State of New Mexico
Disciplinary No. 04-2015-718
Disciplinary No. 09-2014-697
In the matter of John James D’Amato, Esq., an attorney licensed
to practice law before the courts of the state of New Mexico
In the matter of Jason S. Montclare, Esq., an attorney licensed to
practice law before the courts of the state of New Mexico
Formal Reprimand
Formal Reprimand
You are being issued this Formal Reprimand pursuant to the
Conditional Agreement Not to Contest and Consent to Discipline
(“Consent Agreement”) which was approved by both a Hearing
Committee and a Disciplinary Board Panel.
You are being issued this Formal Reprimand pursuant to the
Conditional Agreement Not to Contest and Consent to Discipline
(“Consent Agreement”) which was approved by both a Hearing
Committee and a Disciplinary Board Panel.
You represented a client in a personal injury action, which you
settled, in part, in 2010 for One Hundred Fifty Thousand Dollars
($150,000.00); you then made a partial disbursement to the client
in the amount of $50,000.00, after deduction of attorney’s fees and
costs. You withheld in your client Trust Account $43,492.43 for
the purpose of a claim of subrogation by the Centers for Medicare
and Medicaid Services (CMS). CMS has not taken any action to
collect on its lien or any claim of subrogation.
In the Spring of 2013, you, with a non-lawyer, opened “The Law
Office of Jason Montclare” (“Law Office”) in Alamogordo, New
Mexico. After you had opened the Law Office, you correctly
informed the non-lawyer that ethically, her name could not appear on the sign or letterhead. You also told her that ethically,
you could not split his fees with her, and that she would have to
be paid hourly. You were thus fully aware ofthe provisions ofRule
16-504(A).
Although you made partial distributions to your client in the total
amount of $12,950.00 over a period of 31 months, you continued
to hold the balance in your Trust Account. You took no action to
determine whether CMS intended to assert its claim to any portion of the settlement. That you wanted to retain the funds for
CMS’s claim is understandable, but the retention for five years
without seeking resolution is not reasonable.
You do not contest that had this matter gone to an evidentiary
hearing, the evidence would have shown that throughout the time
that the non-lawyer worked with you, you split your fees with
her. That is, evidence would show that as clients paid, generally
in cash, although once with real property, the money would first
be applied to pay the Law Office’s overhead; then, you would give
to the non-lawyer 50% of the remainder of the fees paid, and you
would take the other 50%. In the case of the real property, you
deeded half the property to the non-lawyer.
Your conduct violated the following Rules of Professional Conduct: 16-103, by failing to act with reasonable diligence and
promptness in representing a client; Rule 16-115(0), by failing to
promptly disburse funds that the client was entitled to receive; and
Rule 16-115(D), by failing to promptly render a full accounting
of client funds.
Your conduct violated Rule 16-504(A) of the Rules ofProfessional
Conduct, by sharing legal fees with a non-lawyer. The purpose
behind the prohibition on fee- sharing is “to protect the lawyer’s
professional independence of judgment.” Rule 16-504, cmt.[1].
You are hereby formally reprimanded for these acts of misconduct
pursuant to Rule 17-206(A)(5) of the Rules Governing Discipline.
The formal reprimand will be filed with the Supreme Court in accordance with 17-206(D), and will remain part of your permanent
records with the Disciplinary Board, where it may be revealed
upon any inquiry to the Board concerning any discipline ever
imposed against you. In addition, in accordance with Rule 17206(D), the entire text of this formal reprimand will be published
in the State Bar of New Mexico Bar Bulletin.
You are hereby formally reprimanded for these acts of misconduct
pursuant to Rule 17-206(A)(5) of the Rules Governing Discipline.
The formal reprimand will be filed with the Supreme Court in accordance with 17-206(D), and will remain part of your permanent
records with the Disciplinary Board, where it may be revealed
upon any inquiry to the Board concerning any discipline ever
imposed against you. In addition, in accordance with Rule 17206(D), the entire text of this formal reprimand will be published
in the State Bar of New Mexico Bar Bulletin.
Dated November 20, 2015
The Disciplinary Board of the New Mexico Supreme Court
By Stephen S. Shanor
Board Chair
Dated November 20, 2015
The Disciplinary Board of the New Mexico Supreme Court
By Stephen S. Shanor
Board Chair
17
Advance Opinions
http://www.nmcompcomm.us/
Opinion Number: 2015-NMCA-088
STATE OF NEW MEXICO, ex rel., CHILDREN, YOUTH AND FAMILIES DEPARTMENT,
Petitioner-Appellee,
v.
CASEY J.,
Respondent-Appellant,
IN THE MATTER OF TICHELLE J., RAZIEL J., and CALEB J., Children
Docket No. 33,409 (filed June 22, 2015)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
WILLIAM E. PARNALL, District Judge
CHARLES E. NEELLEY, JR.,
Chief Children’s Court Attorney
REBECCA J. LIGGETT
Assistant Children’s Court Attorney
CHILDREN, YOUTH & FAMILIES
DEPARTMENT
Santa Fe, New Mexico
for Appellee
Opinion
M. Monica Zamora, Judge
{1} Casey J. (Father) appeals the termination
of his parental rights to T.J., R.J., and C.J.
(Children) not for purposes of restoring his
parental rights in the Children, but rather
to require the Children, Youth and Families
Department (the Department) to place Children with a specific relative, or alternatively
any interested relative. Father argues that
the Department failed to comply with New
Mexico’s Abuse and Neglect Act, NMSA
1978, §§ 32A-4-1 to -34 (1993, as amended
through 2014), and the federal Indian Child
Welfare Act (the ICWA), 25 U.S.C. §§ 1901
to 1963 (2013), with regard to the placement
of Children. Father also argues that he was
denied due process as well as a fair and
impartial termination proceeding. We hold
that the Department’s placement of Children
complied with the state and federal requirements. As to the termination proceedings, we
hold that Father was afforded due process,
and was not deprived of fair and impartial
proceedings. Accordingly, we affirm.
BACKGROUND
{2} The Department filed a neglect/abuse
petition against Father and Andrea T.
(Mother) regarding Children. The Department took Children into custody in
February 2011 due to ongoing concerns
18
CASEY JIM
Farmington, New Mexico
Pro Se Appellant
W. KAREN CANTRELL
Placitas, New Mexico
Guardian Ad Litem
related to each parent’s issues with substance
abuse and domestic violence. At the time
Children were taken into custody, Father
was incarcerated. The district court held
a custody hearing on March 1, 2011. The
district court found that the ICWA applied
because Father, Mother, and Children are all
registered members of the Navajo Nation.
{3} At the adjudicatory/dispositional hearing on April 6, 2011, both Father and Mother
entered pleas of no contest to the allegations
in the neglect/abuse petition, pursuant to
Section 32A-4-2(E)(2). The court adopted
treatment plans for both parents, designed
to address the domestic violence and substance abuse issues. The treatment plans also
required supervised visitation and regular
communication with the Department.
{4} Father was incarcerated sporadically
throughout the pendency of the case. Father
attended most of the monthly meetings
with the Department permanency planning worker when he was not incarcerated,
but did not complete parenting training,
domestic violence or substance abuse
counseling, and was twice discharged for
noncompliance. Father was inconsistent in
his visits with Children and his last visit with
Children was June 29, 2012. After the June
29, 2012 visit, Father called for a few weeks
with excuses for missing visits and after
that the Department permanency planning
worker did not hear from Father again.
{5} On January 31, 2013, the Department
filed a motion for termination of parental
rights of Mother and Father, both members of the Navajo Nation. On April 24,
2013, Mother voluntarily relinquished
her parental rights. The case proceeded
to trial. Father was present, but did not
challenge the evidence that he had failed
to participate in his treatment plan and
that he had abandoned Children. Father
did challenge the compliance of Children’s
foster placements with the requirements of
the ICWA. However, Father argued that
the Department’s failure to place Children
according to the ICWA’s placement preferences constituted a failure to make active
efforts to prevent the breakup of the Indian
family, as required by the ICWA.
{6}At the conclusion of the termination
of parental rights trial, the district court
announced its decision indicating it was
granting the Department’s motion to
terminate Father’s parental rights. Father
filed a motion for reconsideration, which
was heard on August 1, 2013. On October
29, 2013, the district court entered a judgment terminating Father’s parental rights
to Children. This appeal followed.
DISCUSSION
{7}Father makes a number of arguments in support of reversal for purposes
of mandating a relative placement for
Children and not the restoration of his
parental rights. The majority of these arguments relate to the fact that Children were
never placed in foster care with relatives,
members of the Navajo Nation, or other
Indian families. Father argues that the
Department failed to make active efforts
to prevent the breakup of the Indian family
and to comply with the relative placement
preferences under the ICWA and the New
Mexico Abuse and Neglect Act. Father also
contends that in the absence of full compliance with the placement preferences, he
was denied due process of law.
{8} To the extent that any of Father’s claims
relate to the current placement of Children,
we decline to address them. Father may
not challenge the placement of Children
after the termination. See § 32A-4-29(L)
(“A judgment of the court terminating parental rights divests the parent of all legal
rights and privileges.”). Accordingly, our
analysis of Father’s claims is limited to the
foster care placement of Children prior to
the termination of Father’s parental rights.
Children’s Placement Under the ICWA and
the New Mexico Abuse and Neglect Act
{9} Interpretation of the ICWA and the
New Mexico Abuse and Neglect Act
Advance Opinions
presents questions of law that we review
de novo. State ex rel. Children, Youth &
Families Dep’t v. Marsalee P., 2013-NMCA062, ¶ 12, 302 P.3d 761. “[The] ICWA is a
remedial statute in that it was enacted to
stem the alarmingly high percentage of Indian families being separated by removal of
children through custody proceedings[,]”
and we therefore construe it liberally in
order to effectuate its purpose. State ex rel.
Children, Youth & Families Dep’t v. Marlene
C., 2011-NMSC-005, ¶ 17, 149 N.M. 315,
248 P.3d 863 (internal quotation marks and
citation omitted).
{10} The ICWA was enacted to address
the consequences of abusive child welfare
practices that separated Indian children
from their families and tribes through
adoption or foster care placement, usually in non-Indian homes. Miss. Band of
Choctaw Indians v. Holyfield, 490 U.S. 30,
32-33 (1989). The stated purpose of the
ICWA is
to protect the best interests of
Indian children and to promote
the stability and security of Indian
tribes and families by the establishment of minimum Federal
standards for the removal of Indian children from their families
and the placement of such children in foster or adoptive homes
which will reflect the unique
values of Indian culture, and by
providing for assistance to Indian
tribes in the operation of child
and family service programs.
25 U.S.C. § 1902. The overarching concern
of Congress and the proponents of the
ICWA, was the maintenance of the family
and tribal relationships existing in Indian
homes. Holyfield, 490 U.S. at 37.
One of the most serious failings of
the present system is that Indian
children are removed from the
custody of their natural parents
by nontribal government authorities who have no basis for intelligently evaluating the cultural
and social premises underlying
Indian home life and childrearing. Many of the individuals who
decide the fate of our children are
at best ignorant of our cultural
values, and at worst contemptful
of the Indian way and convinced
that removal, usually to a nonIndian household or institution,
can only benefit an Indian child.
Id. at 34-35 (internal quotation marks
and citation omitted). At the core of the
ICWA is the tribal interest in the impact
that the large numbers of adoptions of Indian children by non-Indians have on the
tribes themselves. Id. at 49-52. The ICWA
“recognizes that the tribe has an interest
in the child which is distinct from but on
a parity with the interest of the parents.”
Id. at 52 (internal quotation marks and
citation omitted).
{11} The ICWA establishes federal standards for state-court child custody proceedings involving Indian children. Id. at 36-37.
As relevant here, the ICWA conditions
involuntary termination of parental rights
with respect to Indian children on a showing that active efforts have been made to
prevent the “breakup of the Indian family,”
25 U.S.C. § 1912(d); and provides preferences for the foster care placement of Indian
children with a member of the Indian child’s
extended family; a foster care home licensed,
approved and specified by the Indian child’s
tribe; an Indian foster care home licensed
or approved by an authorized non-Indian
licensing authority; or an institution for children approved by the Indian child’s tribe or
operated by an Indian organization that has
a program suitable to meet the Indian child’s
needs. 25 U.S.C. § 1915(b). The New Mexico
Abuse and Neglect Act has incorporated the
ICWA’s placement preferences. See NMSA
1978, § 32A-4-9(A) (1993).
Active Efforts Designed to Prevent the
Breakup of the Indian Family
{12} Father contends that the Department did not make active efforts to prevent
the breakup of his family because Children
were not placed with relatives and because
Children were not always placed together
in one foster home. We understand the
basis of Father’s argument to be the requirements for preservation of the Indian
family as set forth in 25 U.S.C. § 1912(d).
{13} Section 1912(d) of the ICWA provides that a party seeking to terminate
parental rights to an Indian child under
state law “shall satisfy the court that active
efforts have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the
Indian family and that these efforts have
proved unsuccessful.” Adoptive Couple
v. Baby Girl, ___U.S. ___, ___,133 S. Ct.
2552, 2562 (2013) (emphasis, internal
quotation marks and citation omitted).
Efforts to provide remedial services under
this section are intended to “alleviate the
need to remove the Indian child from his
or her parents or Indian custodians.” Id. at
2563 (internal quotation marks and citation omitted).
{14} Section 1912(d) of the ICWA should
be read in harmony with “§ 1912(e) and
§ 1912(f), both of which condition the
outcome of proceedings on the merits of
an Indian child’s ‘continued custody’ with
his parent.” Adoptive Couple, 133 S. Ct. at
2563. Thus, 25 U.S.C. § 1912(d) requires
that Indian parents be “provided with
access to remedial services and rehabilitative programs . . . so that their custody
might be continued in a way that avoids
foster-care placement under § 1912(e)
or termination of parental rights under
§ 1912(f).” Adoptive Couple, 133 S. Ct. at
2563 (internal quotation marks omitted).
“[T]he provision of remedial services and
rehabilitative programs under § 1912(d)
supports the continued custody that is
protected by § 1912(e) and § 1912(f).”
Adoptive Couple, 133 S. Ct. at 2563 (internal quotation marks omitted). It does
not apply to facilitate the placement of the
child in compliance with the placement
preferences listed in § 1915. Adoptive
Couple, 133 S. Ct. at 2558.
{15} Here, Father’s argument is focused
on Children’s foster placements throughout the case, not on the Department’s
efforts to prevent a disruption in custody
or parental rights as contemplated by 25
U.S.C. § 1915(d). Father does not address
the Department’s efforts to provide him
with remedial services and rehabilitative
programs prior to the removal of Children
from the home, or the Department’s efforts to engage him in such services and
programs through his treatment plan. As
a result, whether the Department made
active efforts to prevent the breakup of the
Indian family, as required by 25 U.S.C. §
1912(d), is not an issue in this appeal. See
In re Doe, 1982-NMSC-099, ¶ 3, 98 N.M.
540, 650 P.2d 824 (recognizing that appellate courts should not reach issues not
raised by the parties). Our relevant inquiry
is whether the ICWA placement preferences were followed, and if not, whether
good cause existed to deviate from them.
The ICWA Placement Preferences
{16} The ICWA and the New Mexico
Abuse and Neglect Act specify that, absent
good cause to the contrary, foster care placement shall be with: “[(1)] a member of the
Indian child’s extended family; [(2)] a foster
home licensed, approved, or specified by the
Indian child’s tribe; [(3)] an Indian foster
home licensed or approved by an authorized
non-Indian licensing authority; or [(4)] an
institution for [the] children approved by
an Indian tribe or operated by an Indian organization which has a program suitable to
19
Advance Opinions
meet the Indian child’s needs.” See 25 U.S.C.
§ 1915(b); Section 32A-4-9(A). The party
seeking to deviate from the placement preferences bears the burden of establishing the
existence of good cause to do so. Bureau of
Indian Affairs, Guidelines for State Courts;
Indian Child Custody Proceedings, 44
Fed. Reg. 67584, 67594 (Nov. 26, 1979). In
determining whether good cause exists for
deviating from the placement preferences,
a court is required to examine the reasons
for deviation in light of “the prevailing social
and cultural standards of the Indian community.” 25 U.S.C. § 1915(d). The recently
issued Bureau of Indian Affairs Guidelines
(BIA Guidelines) recognize that any party
may raise the issue of whether good cause
not to follow the ICWA placement preferences exists. 80 Fed. Reg. 10150, § F(4)
(February 25, 2015).
{17} In this case, the district court found
that good cause to deviate from the ICWA
placement preferences existed, beyond a
reasonable doubt. This standard applies
to termination of parental rights under
the ICWA. See 25 U.S.C. § 1912(f) (“No
termination of parental rights may be
ordered in such proceeding in the absence
of a determination, supported by evidence
beyond a reasonable doubt including testimony of qualified expert witnesses, that
the continued custody of the child by the
parent or Indian custodian is likely to result
in serious emotional or physical damage
to the child.”). However, neither 25 U.S.C.
§ 1915(b) nor Section 32A-4-9(A) of the
Abuse and Neglect Act identify a standard
of proof for the good cause exception to
the placement preferences identified in
the statute. We are also unaware of any
New Mexico case law that has established
a standard as it relates to the good cause
exception. We need not decide on a standard for two reasons. First, the issue is not
squarely before us as neither party has
raised the issue. See In re Doe, 1982-NMSC099, ¶ 3 (recognizing that appellate courts
should not reach issues not raised by the
parties). Second, under the facts of this
case, we conclude that the district court’s
findings of good cause to deviate from the
ICWA placement preferences are appropriate whether the burden of proof was
preponderance of the evidence, clear and
convincing, or beyond a reasonable doubt.
Deviation From The Placement
Preferences Was Supported by Good
Cause
{18} Father argues that the district court’s
determination that good cause existed to
deviate from the ICWA placement prefer20
ences was not supported by the evidence.
The ICWA does not define “good cause.”
However, the BIA Guidelines for state
courts to use in Indian child custody
proceedings provide that a determination
of good cause not to follow the placement
preferences should be based on one or
more of the following considerations: a
“request of the biological parents or the
child when the child is of sufficient age”;
the “extraordinary physical or emotional
needs of the child as established by testimony of a qualified expert witness”; and
the “unavailability of suitable families for
placement after a diligent search has been
completed for families meeting the preference criteria.” Guidelines for State Courts;
Indian Child Custody Proceedings, 44 Fed.
Reg. at 67,594.
{19} There are some courts that limit
their good cause analysis to the considerations listed in the BIA Guidelines. See In
re Custody of S.E.G., 521 N.W.2d 357, 362
(Minn. 1994) (stating that simply applying
the best interests standard is contrary to
the plain language of the ICWA read as
a whole, and to its legislative history); see
also In re Adoption of Riffle, 922 P.2d 510,
514 (Mont. 1996) (deciding it is improper
to apply best interest when determining
good cause because the ICWA expresses
presumption that it is in the Indian child’s
best interest to be placed in conformance
with the preferences).
{20} Other courts have held that the considerations listed in the BIA Guidelines are
not exhaustive. See In re Adoption of M.,
832 P.2d 518, 522 (Wash. Ct. App. 1992)
(“Good cause is a matter of discretion,
and discretion must be exercised in light
of many factors. These include but are not
necessarily limited to the best interests
of the child, the wishes of the biological
parents, the suitability of persons preferred
for placement, the child’s ties to the tribe,
and the child’s ability to make any cultural
adjustments necessitated by a particular
placement.” (citations omitted)); see also
In re Adoption of F.H., 851 P.2d 1361,
1363-64 (Alaska 1993) (“Whether there is
good cause to deviate in a particular case
depends on many factors including, but not
necessarily limited to, the best interests of
the child, the wishes of the biological parents, the suitability of persons preferred for
placement and the child’s ties to the tribe.”).
{21} NMSA 1978, § 32A-1-3(A), (B)
(2009) provide, in pertinent part, that
the Children’s Code shall be interpreted
and construed to effectuate the following
legislative purposes:
A.[F]irst to provide for the care,
protection and wholesome mental and physical development
of children coming within the
provisions of the Children’s Code
and then to preserve the unity of
the family whenever possible. A
child’s health and safety shall be
the paramount concern. Permanent separation of a child from
the child’s family, however, would
especially be considered when
the child or another child of the
parent has suffered permanent or
severe injury or repeated abuse. It
is the intent of the [L]egislature
that, to the maximum extent
possible, children in New Mexico
shall be reared as members of a
family unit;
B.[T]o provide judicial and other
procedures through which the
provisions of the Children’s Code
are executed and enforced and in
which the parties are assured a fair
hearing and their constitutional
and other legal rights are recognized and enforced[.]
(Emphasis added.) Thus, in determining
the existence of good cause to deviate
from the ICWA placement preferences,
the court must give primary consideration
to the children’s best interests, but must
ensure that the constitutional and other
legal rights of all the parties are considered.
{22} We recognize that parents have a
“fundamental liberty interest in the care,
custody, and management of their children.”
State ex rel. Children, Youth & Families Dep’t
v. Amanda M., 2006-NMCA-133, ¶ 18, 140
N.M. 578, 144 P.3d 137. Parents also have a
right to pursue familial relationships with
their children. See Roberts v. U.S. Jaycees,
468 U.S. 609, 618-20 (1984) (holding that
familial associations are included in the fundamental right to freedom of association);
see also Lucero v. Salazar, 1994-NMCA-066,
¶¶ 6-9, 117 N.M. 803, 877 P.2d 1106 (recognizing the fundamental right of familial
association or right to intimate familial relationship). As discussed above, the Indian
tribe has an interest in Indian children that
is in parity with that of the parents. Holyfield, 490 U.S. at 52.
{23} However, it is well established that
these rights are not absolute; rather, they
must yield to the “best interests and welfare
of the children.” State ex rel. Children, Youth
& Families Dep’t v. John R., 2009-NMCA025, ¶ 27, 145 N.M. 636, 203 P.3d 167 (internal quotation marks and citation omitted).
YLD…In Brief
The Official Newsletter of the State Bar of New Mexico Young Lawyers Division
December 2015
YLD BOARD
Chair, Kenneth H. Stalter
Chair-elect, Spencer L. Edelman
Vice Chair, Tomas J. Garcia
Director-At-Large, Position 1, Kenneth H. Stalter
Director-At-Large, Position 2, Tomas J. Garcia
Director-At-Large, Position 3, Sean M. FitzPatrick
Director-At-Large, Position 4, Sonia R. Russo
Director-At-Large, Position 5, Robert Lara Jr.
Region 1 Director, Evan R. Cochnar
Region 2 Director, Jordan Kessler
Region 3 Director, Anna Casey Rains
Region 4 Director, Erinna Marie Atkins
Region 5 Director, Spencer L. Edelman
Past Chair, Benjamin I. Sherman
UNM School of Law Liaison, Stephanie Crespin
YLD SECTION LIAISONS
Animal Law, Cristal Anne Weatherly
Appellate Practice, Stephen R. Marshall
Bankruptcy Law, Katharine C. Downey
Business Law, Joshua L. Smith
Children’s Law, Hilari B. Lipton
Criminal Law, Vacant
Elder Law, Jeanine R. Steffy
Employment and Labor Law, Melissa Marie Kountz
Family Law, Christina M. Looney
Health Law, Catherine Russell
Immigration Law, Horatio Patrick Moreno-Campos II
Indian Law, Dustin O. Jansen
Intellectual Property Law, Steven J. Lucero
Natural Resources, Energy and Environmental Law,
Kathryn Joy Brack Morrow
Prosecutors, Tim Scheiderer
Public Law, Tania Shahani
Real Property, Trust and Estate, Lesley Jane Nash
Solo and Small Firm, Vacant
Taxation, Vincent McKay Haslam
Trial Practice, Khouloud E. Pearson
YLD PROGRAM CHAIRS
Veterans’ Clinics, Spencer Edelman
Serving Our Seniors, Tomas Garcia
Wills for Heroes, Spencer Edelmen,
Jordan Kessler, Sonia Russo
Law-Day Call In, Spencer Edelman, Robert Lara, Erin
Atkins, Jordan Kessler, Sonia Russo
Law Day Essay Contest, Robert Lara, Tomas Garcia
Constitution Day, Erin Atkins
Diversity Collaboration, Sonia Russo
YLD/UNM SOL Mentorship Program,
Tomas Garcia, Ben Sherman
YLD/UNM SOL Speed Networking,
Sean FitzPatrick, Ben Sherman
YLD/UNM SOL Mock Interview Program,
Spencer Edelman, Ben Sherman
Summer Fellowship Program, Ben Sherman
YLD ... In Brief, Ben Sherman
Bylaws Committee, Sean FitzPatrick
Interview Program, Tomas Garcia, Sean FitzPatrick
YLD CLE, Robert Lara
YLD…In Brief
Message from the YLD Chair…
By Ken Stalter
A
s 2015 draws to a close,
allow me to thank everyone
who participated in YLD
programming this year. We had an
extraordinary year of service to the
public and the profession. It was
only possible because of those who
gave their time.
Thank you to all the volunteers
who made our public service
projects so successful this year.
We’ve been especially lucky to
have a fantastic turn out from
experienced attorneys as well as members of the paralegal division.
Without them, we would not have been able to sustain our two
biggest public-service programs the Veterans’ Civil Justice Initiative
and Wills for Heroes.
Thank you to all those who have participated in our member
service projects, particularly YLD/UNM School of Law Mentorship
Program. The practice of law in New Mexico is unique in its
collegiality and sense of community. YLD’s commitment to member
service helps foster that sense, especially as we introduce new
attorneys to the profession.
Thank you to the other divisions and sections that have collaborated
with us throughout the year. These collaborations have been fun and
informative—a wonderful means for new attorneys to expand their
horizons.
Thank you, finally, to the members of the YLD board. You are the
heart of the YLD and I have been honored to work alongside you. I
want to welcome Spencer Edelman as chair for 2016 as well as the
other incoming officers. I look forward to what Spencer has in store
for us and I know the division will be in good hands.
1
ABA YLD Update
By Sonia Russo, Director-At-Large, Position 4
2
015 is in the books for the
American Bar Association Young
Lawyers Division, and it’s been
a great year. The year kicked off with
the ABA Midyear Meeting, Feb. 5–7
in Houston, Texas. Long-time YLD
board member Keya Koul co-chaired
a presentation on appointments,
scholarships and fellowships within the
ABA YLD. ABA Secretary Mary T. Torres
and prominent Albuquerque attorney
Roberta Cooper Ramo were also featured
as speakers on a panel of ABA trailblazers.
Ramo later received the ABA’s highest
honor, the ABA Medal, during the ABA
Annual Meeting in Chicago in July.
In April board members of the State Bar
YLD and other young lawyers from New
Mexico traveled to Aspen, Colo., for
the first annual Four Corners Regional
Summit. The two days of the conference
were packed with comprehensive
affiliate leadership training that provided
substantive, specific tools and advice for
providing better programming for both
the legal community here at home as well
as the public that we serve. The regional
summit was a wonderful opportunity
to get to know and learn from other
active young lawyers in Utah, Wyoming,
Colorado and Oklahoma.
From top left, Allison Block-Chavez, Sonia Russo, Chris Wharton and
Audrey Phillips at the Fall Conference in Little Rock, Ark.
This year, the two main public service initiatives of the ABA
YLD have been Project Street Youth, which aims to serve
homeless youth, and World Wise Web, which is designed
to keep children safe online and decrease their exposure
to cyber predators. World Wise Web is the ABA YLD’s
public service project for 2016–2017. Also new this year is
the What Do Lawyers Do project, which aims to provide
programming for undergraduate students, particularly
racially and ethnically diverse students, on how to enter
the legal profession. At least one What Do Lawyers Do
event will be held here in New Mexico and the ABA YLD
held one of these programs during the Fall Conference in
October in Little Rock, Ark.
2
Looking forward, the ABA YLD is poised to continue
great work with the What Do Lawyers Do initiative, and
with World Wise Web. The ABA Midyear Meeting will
be in San Diego, Calif., in February and the ABA YLD
Spring Conference will be in St. Louis, Mo., in May. What
Do Lawyers Do events will also be implemented at these
meetings. For more information about how you can get
involved with the ABA YLD, contact Soonia Russo at
[email protected].
YLD…In Brief
Constitution Day
By Sean FitzPatrick, Director-At-Large, Position 3
D
uring the week of Sept. 14–18 attorneys from across the state participated in Constitution Day presentations for
fifth grade classrooms in the YLD’s annual Constitution Day celebration. YLD Board Members organized volunteer
judges and attorneys and matched them with schools in their local areas. 85 schools and more than 5,000 students
participated in the event! Each student received a copy of the Constitution, courtesy of the YLD. The volunteers led games,
discussions and even passionate debates with the students. This event was a great success again this year! The YLD wishes to
thank all who participated and inspired the young students of New Mexico.
and
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YLD…In Brief
Elementary School
3
Law Day Call-in
By Erin Atkins, Region 4 Director
O
n Saturday morning, May 2, a deep breath brought
in the familiar scent of fresh, hot coffee. It was
quiet. Attorneys around the state of New Mexico
were catching up and making new acquaintances. But when
the clock struck 9 a.m., phones started ringing and the
otherwise normal Saturday morning resembled the scene
of a telethon. Except it wasn’t a telethon, it was the Young
Lawyers Division Law Day Call-in!
Lawyers at various locations around the state in
Albuquerque, Alamogordo, Gallup and Roswell took more
than 220 calls from the public. Calls flooded in, thanks,
in large part, to past YLD Chair Ben Sherman promoting
the event on KOAT-7. Free legal advice was provided on a
range of topics including wills, real estates, personal injury,
criminal law and family law issues.
With more than 30 attorney volunteers that morning,
there was a total of over 120 hours of combined free legal
advice. YLD especially thanks the many volunteers who
participated and made this day a success.
Law Day
Call-in Program
MAY 2, 2015
Alamogordo Volunteers: Canon Stevens, Petria Schreiber, Kay
Pearson, Hon. James Waylon Counts, John Hakanson, Mark
Reeves, Darla Gorman, Irene Counts and S. Bert Atkins
Randy Powers Jr.
NEW MEXICO
4
Paul Cash
Roswell Volunteers: Chelsea Seaton, Dustin Hunter, Jared Kallunki,
Hon. Charles Currier, Kelly Cassels, James “Mitch” Mitchell, Jared
Ford, Clayton Hightower, Beth Hightower, and Elizabeth Shields
Sean FitzPatrick
Lizeth Cera
YOUNG LAWYERS DIVISION
YLD…In Brief
YLD/UNM SOL Mentorship Program
By Ben Sherman, Immediate Past Chair
T
he YLD/UNM School of Law Mentorship Program
remained one of the most popular and successful
programs of the year in 2015. This year, more than
75 young lawyers volunteered to mentor law students from
the University of New Mexico. On the evening of Sept. 23,
more than 100 mentors and mentees gathered on the back
patio of the law school for the annual Mentorship Program
BBQ Kickoff. As music played and drinks flowed, mentors
and mentees enjoyed meeting each other for the first time.
After speeches from representatives of both the Young
Lawyers Division and Career Services, pairs of mentors and
mentees were able to network and socialize, thus beginning
professional relationships that will foster valuable learning
experiences and could even lead to future job offers.
On Nov. 12, young lawyers and law students braved the
cold and gathered at Backstreet Grill, in Old Town, for the
popular annual Mentorship Program Happy Hour. In a
warm atmosphere with live music, food, and drinks, pairs
of mentors and mentees networked and socialized. Fun was
had by all as lawyers mingled with law students in a casual
and relaxed setting. At the event, lawyers and law students
reported positive experiences with their mentors and
mentees and were able to form new relationships.
The YLD/UNMSOL planning commission is excited about
the next event, which will take place after winter break. On
Nov. 17, YLD board members, Student Bar Association
representatives and career service faculty met at the law
school to discuss the annual late winter/early spring event.
We are excited to announce the next event will be a Trivia
Night on February 24, 2016, at Ponderosa Brewery. The
event begins at 5:30 p.m. Attorney mentors and law student
mentees will be divided into teams to enjoy in a friendly
trivia competition in a fun and lively atmosphere. We hope
to see everyone at this popular and fun event!
The YLD wants to expressly thank all of the lawyers who
volunteered their precious time to bettering the future
lawyers of New Mexico and developing the pipeline to the
profession.
Sean FitzPatrick, Ben Sherman and Sonia Russo
YLD members gather at the Isotopes tailgating event.
YLD…In Brief
5
Speed Networking
By Ben Sherman, Immediate Past Chair
A
lways a well-attended and popular event, the annual
YLD Speed Networking was no different in 2015.
The event took place on Oct. 27 at the State Bar
Center. This year, more than 40 attorneys and law students
participated in the event, aimed at improving law students’
networking skills. During the exercise, lawyers are asked
to form an outward-facing circle (good thing we don’t use
much Geometry in our jobs!). Law students then form an
inward-facing circle around the lawyers so that law students
and lawyers are face-to-face (as seen below). Once everyone
is in position, lawyers and law students are instructed to
begin to talk as if they have just met and only have a few
minutes to chat. Every 2-3 minutes, a chime is rung and
the law students are asked to rotate 1 person. By the end of
the event, each law student is able to meet and talk to every
single attorney in the room.
6
YLD is committed to improving the pipeline to the legal
profession and the Speed Networking event an excellent
way for law students to build confidence and skill when
networking with other professionals. Over the years, we
have heard countless instances in which law students have
formed long-term learning and mentoring relationships
with lawyers they met at the event. Everyone had fun and
we look forward to continuing this worthwhile event next
year! Thank you to all of the lawyers who took time out of
their busy schedules to volunteer.
YLD…In Brief
Wills for Heroes
By Spencer Edelman, Chair-elect
N
ew Mexico has seen its share
of tragedy this year, losing
first-responders who put their
life on the line to protect the public.
Unfortunately, the tragic loss of life is
a reality for first-responders that will
never go away. The Young Lawyers
Division, together with the Paralegal
Division and members of the State
Bar have helped deal with this reality
through the Wills for Heroes program.
Wills for Heroes provides free wills and
other estate planning documents for
qualified first responders. The program
originated after Sept. 11, when
Anthony Hayes asked what lawyers
could do to help in response to the
terrorist attack. He quickly identified
a crucial need—Very few of the first
responders who selflessly responded
to the attack had any estate planning
documents. Following those first
efforts to provide pro bono services
to New York’s first responders, the
program was expanded to help police,
firefighters and EMTs around the
country.
This year Wills for Heroes had its
largest impact in New Mexico to date.
Four Wills for Heroes clinics were
hosted in the Albuquerque metro area
coordinated by Spencer Edelman.
One clinic was hosted in Alamogordo
coordinated by Erin Atkins and the
12th Judicial District Bar Association.
One clinic was hosted in Socorro at
the Fourth Annual Fire & EMS Expo at the New Mexico
Firefighters Training Academy coordinated by Robert Lara.
An upcoming program is in the works in Farmington. With
such a successful year, the YLD hopes to reach even more
first responders in 2016.
One of the best things about the program is that lawyers
with no experience in drafting wills or estate planning
YLD…In Brief
documents can guide first responders through a few simple
questions, and the first responders can leave that day with
a will in hand. If you are interested in volunteering at an
upcoming clinic please keep an eye out for emails from the
State Bar and announcements in the Bar Bulletin. If you
are interested in helping the YLD host a clinic for a group
of first responders in your area contact Spencer Edelman at
[email protected].
7
Young Lawyers Division
2015 Election Results
Congratulations to Sean FitzPatrick who has been elected to
YLD Director-at-Large, Position 3!
He will assume office January 1, 2016 along with
the other new board members below:
Region 1 Director: Evan Cochnar
Region 3 Director: Anna Rains
Director-at-Large, Position 1: Allison Block-Chavez
Director-at-Large, Position 5: Robert Lara
Upcoming YLD Events
Jan. 30, 2016, 8:30 a.m.-noon, UNM School of Law:
UNMSOL/YLD Mock Interview Program
Attorney-volunteers are needed to give mock interviews to law students.
Feb. 24, 2016, 5:30-7:30 p.m., Ponderosa Brewery:
Annual Mentorship Program Trivia Night
All attorneys participating in the mentorship program are invited to attend with their mentees.
8
YLD…In Brief
Advance Opinions
In assessing the children’s best interests, it is
imperative that the children are recognized
as people who have fundamental interests
of their own that are constitutionally protected. See In re Gault, 387 U.S. 1, 13, (1967)
(holding that the Fourteenth Amendment
and the Bill of Rights apply to children.);
see also In re Guardianship of Victoria R.,
2009-NMCA-007, ¶ 11, 145 N.M. 500, 201
P.3d 169 (stating that a child is a person for
purposes of the Fourteenth Amendment).
The children have the fundamental right to
be protected from abuse and neglect, and to
have a permanent and stable placement. Id.
They “are not simply chattels belonging to
the parent, but have fundamental interests
of their own that may diverge from the interests of the parent.” Id. (internal quotation
marks and citation omitted).
Standard of Review for Good Cause
Determinations
{24} The determination of good cause
to deviate from the ICWA placement
preferences is a legal standard. See Dep’t of
Human Servs. v. Three Affiliated Tribes of
Fort Berthold Reservation, 238 P.3d 40, 50
(Or. Ct. App. 2010). Accordingly, “we must
determine whether the facts, as found by
the trial court and as supported by evidence in the record, are legally sufficient
to establish ‘good cause’ to depart from
[the] ICWA’s placement preferences.” Id.
“On appeal, this Court does not re-weigh
the evidence, rather, we view the evidence
in the light most favorable to the prevailing party.” State ex rel. Children, Youth &
Families Dep’t v. Jerry K., 2015-NMCA047, ¶ 24, ___P.3d___. “Our overarching
goal when interpreting the ICWA is to
effectuate Congress’s intent.” Marlene C.,
2011-NMSC-005, ¶ 15.
The District Court’s Findings of Good
Cause
{25} The district court heard evidence
related to Children’s placement at the adjudicatory/dispositional hearing, the initial
judicial review hearing, five permanency
hearings, the termination of parental rights
trial, and the hearing on Father’s motion to
reconsider. The district court consistently
found that good cause existed to deviate
from the ICWA’ s placement preferences.
The Adjudication and the Initial Judicial
Review
{26} The adjudicatory/dispositional hearing was held on April 6, 2011. The ICWA
qualified expert witness (QEW) working
for the Navajo Nation Children and Family Services testified that she was aware of
Children’s current placements and that
the placements did not meet the ICWA
placement preferences, but that good cause
existed to deviate from the preferences.
The district court found that the ICWA
placement preferences had not been followed because the Department had been
unable to find an ICWA approved home,
and that the Department was working
with the Navajo Nation to determine an
appropriate relative placement.
{27} The testimony of the QEW, that
good cause existed to deviate from the
ICWA placement preferences, was sufficient to meet any standard. Under the
ICWA, no foster care placement for an Indian child may be ordered “in the absence
of a determination, supported by clear and
convincing evidence, including testimony
of qualified expert witnesses, that the continued custody of the child by the parent
or Indian custodian is likely to result in
serious emotional or physical damage to
the child.” § 1912 (e). The best interests
of Indian children will often be directly
linked to their tribal culture. Guidelines
for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. at 67593. The
purpose of the QEW is to provide testimony related to the Indian child’s best
interests from the perspective of someone
with expert knowledge of tribal culture
and childrearing practices. Id.
{28} In this case, the QEW was a social
worker for the Navajo Nation Children and
Family Services who had been employed
with the Navajo Nation for over a yearand-a-half, and who was knowledgeable
about the provisions of the ICWA. The
QEW explained that she was knowledgeable about the practices and traditions of
the Navajo Nation as a registered member
of the tribe and as an active participant
in the Navajo practices and traditions.
The district court did not err in relying
on her testimony that, at the time of the
adjudicatory/dispositional hearing, good
cause existed to deviate from the ICWA
placement preferences.
{29} On June 3, 2011, the district court
held an initial judicial review hearing.
Information was presented that the Department was not able to find a placement for
Children together. Children were placed
in two separate foster homes and were
visiting with each other. The Department
was working with Mother, Father, and the
Navajo Nation to determine an appropriate
placement. The QEW testified that the Department was looking at two relatives, who
did not live on the reservation, for possible
placement. The Department permanency
planning worker explained that three rela-
tives had come forward: (1) a member of
the Zia Pueblo, but the Zia Pueblo would
not allow the Department to conduct a
home study because Children were not Zia
members; (2) Children’s paternal uncle who
withdrew for health reasons; and (3) a paternal aunt, Bernice Strait (Aunt), for whom
the Department was working on approval
to go forward with the home study process.
{30} The district court encouraged the
Department and the QEW to stay in touch
and work out a suitable placement. The
QEW did not identify any special needs
of Children, and stated her approval of
Children’s placement. The district court
found that, at that time, there was good
cause not to follow the ICWA placement
preferences.
{31} In light of the Department’s efforts
to find relative placements for Children,
the unavailability of ICWA-compliant
placements, and the QEW’s approval and
statement of good cause, we conclude that
the district court did not err in determining that good cause existed to deviate from
the ICWA placement preferences at the
time of the initial judicial review.
The Permanency Hearings
{32} The initial permanency hearing was
held on November 30, 2011. The Department reported that it was continuing to
look for a placement that met the ICWA
placement preferences and was working
with the Navajo Nation to identify an appropriate relative. The Guardian Ad Litem
(GAL) testified that Children were doing
well in their respective foster homes, but
that when there was visitation, there was
some troublesome sibling interaction that
may need to be dealt with therapeutically.
{33} The CASA volunteer, who was a
member of the Navajo Nation, reported that
she was helping to foster Children’s cultural
connections. She stated that she was able to
provide Children with traditional outfits
including jewelry and moccasins, and that
she was helping out with T.J.’s coming of
age ceremony, which was a big part of T.J’s
life. The Department indicated that Aunt
had a good relationship with Children, and
that she had been very supportive and had
been visiting them. The Department also
reported that Aunt had provided traditional
items for Children to wear on feast days,
which was very meaningful to Children.
{34} A new social worker from the Navajo Nation, also admitted as a QEW, had
been assigned to the case. She requested
that Mother and Father provide names of
relatives on the reservation for consideration as potential placements for Children.
21
Advance Opinions
Mother and Father were present and both
indicated that they wanted Children to
be placed with Aunt. The Department
explained that a home study was started
with Aunt, but that Aunt had withdrawn
from consideration because she was caring for her mother. However, at the time
of the hearing, Aunt was again expressing
an interest in having Children placed with
her and the Department was pursuing that
placement. The court stated its support for
pursuing and finalizing placement of Children with Aunt. The Navajo Nation did not
object to Aunt as a possible placement.
{35} In its first permanency hearing order, the district court found that the ICWA
placement preferences were not being followed because the Department had been
unable to locate an ICWA approved home.
However, the court also found that the Department was working with the Navajo Nation to determine an appropriate relative
placement, and that the Department was
working with the Navajo Nation and the
family to preserve and maintain Children’s
cultural connection. The evidence presented at the first permanency hearing showed
that the Department was actively pursuing
relative placement options for Children,
and that placement in accordance with
the ICWA had not yet been possible due
to the unwillingness or unavailability of
relative placements. The Department also
showed that it was making efforts toward
addressing the special needs of Children
and promoting their connections with
their heritage. Father’s request, that Aunt
be considered as a placement option, was
being actively pursued by the Department.
We conclude that the district court did not
err in finding there was good cause to deviate from the ICWA placement preferences
at the first permanency hearing.
{36} A second permanency hearing was
held on February 22, 2012. Father was not
present. Father’s attorney could not reach
Father and did not know his location. At
the February 2012 hearing, it was reported
that Children were doing relatively well in
their current placements. R.J. and C.J. were
receiving speech and language therapy. No
other special needs were identified.
{37} It was also reported that Aunt had
again withdrawn from the home study
process and the Department had been
actively trying to find other relatives. The
permanency planning worker stated that
she had requested names of relatives from
Father, Mother, and Aunt, and had even
asked Children if there were relatives that
they would like to see more often. The
22
relatives that had been considered for
placement at the time of the hearing had
been ineligible due to their backgrounds.
{38} When asked, the QEW indicated that
she did not believe there was ever good
cause to deviate from the ICWA placement
preferences, but that she understood that
the Department could not find Navajo or
Native American foster homes for Children. The Department indicated that it
would accept help from the Navajo Nation
in locating potential relative or Navajo
placements for Children. The district court
asked the Navajo Nation to assist the Department in finding a suitable ICWA placement. The district court found that good
cause existed to deviate from the ICWA
placement preferences, and encouraged
the Navajo Nation and the Department to
work together in finding a suitable, ICWAcompliant placement for Children.
{39} The evidence presented at the
second permanency hearing showed the
unavailability of suitable relatives, Navajo,
or other Native American placements. The
absence of appropriate ICWA approved
placements, along with the continued efforts by the Department and the Navajo
Nation, constituted good cause to deviate
from the ICWA placement preferences.
Additionally, there was no indication by
the GAL or the Navajo Nation that Children’s needs were not being met in their
placements at that time. We conclude the
district court did not err in finding good
cause to deviate from the placement preferences at the second permanency hearing.
{40} A third permanency hearing was
held on August 20, 2012. Father was not
present and his attorney was unable to
contact or locate him. The Department
reported that Children were all placed together in a new foster placement. The new
placement was not an adoptive home for
Children and the Department indicated
that it wanted to get Children free for
adoption so that the Department could
start the adoption recruitment effort. The
GAL reported that Children were doing
well in the new placement where they
were all together. She also stated Children
were involved in therapy and with cultural
activities through the Native American
Community Academy (NACA), where T.J.
attended school.
{41} The Department reported that it had
located some paternal relatives that were
willing to be considered for placement,
but they had withdrawn from the home
study process because it was too invasive.
The permanency planning worker then
explained that several relatives had been
located for possible placement but that
none wanted to step forward because they
were fearful of Father and Mother. She also
explained that the Department had considered Aunt as a placement three times,
and Father’s brother had also indicated that
he would be a placement option, but twice
withdrew. The Department also informed
the court that it had maintained contact
with Aunt and that Aunt had provided the
name of a third cousin that the Department could contact regarding placement.
The Department had also asked Aunt to
look into clan members that may provide
potential placements.
{42} The Department asked for assistance from the Navajo Nation in locating
potential Navajo placements. The QEW
indicated that she still needed to rule out
any proposed placements by their adoption unit and requested a photograph and
profile of Children so that a request for
certified homes to consider placement of
Children could be made.
{43} The district court found that the
ICWA placement preferences had not been
followed; however, “good cause exist[ed]
for deviating from the . . . placement preferences because no relative, no Navajo,
and no Indian homes [had] been identified
and approved for placement.” The court
further found that the “Department [was,]
through its treatment plan, . . . ensuring
that [C]hildren’s cultural ties [were] being
protected and fostered.”
{44} The Department’s inability to place
Children in compliance with the ICWA
placement preferences stemmed primarily
from the unavailability of suitable families
for placement. There was no testimony to
indicate Children had special needs that
were unmet in their current placement.
We also note that there was no objection to
the placement by the parents or the Navajo
Nation. We conclude that the district court
appropriately found that there was good
cause to deviate from the placement preferences at the third permanency hearing.
{45} On February 19, 2013, a fourth
permanency hearing was held. Father was
not present and his attorney was unable to
locate him. At that hearing, the Department reported that R.J. and C.J. had been
placed in treatment foster care because
they needed a higher level of care. The
Department also indicated that it had been
unsuccessful in finding and qualifying a
suitable relative or Native American placement for Children. The GAL reported that
R.J. and C.J. had experienced significant
Advance Opinions
and troubling behaviors that necessitated
their transition to a treatment foster care
facility. She informed the court that T.J.
remained placed in her original foster
home and that she was doing well in that
placement and at school where her cultural
ties were being protected and fostered.
{46} The district court asked the QEW
what the Navajo Nation’s position was
on the efforts of the Department and on
whether good cause existed to deviate
from the ICWA placement preferences.
The QEW stated that the Navajo Nation
supported the Department’s efforts to
find permanency for Children; however,
the Navajo Nation was still looking for
possible relative placements on the reservation, and that a referral had been made
to the Navajo Nation’s adoption unit. The
Navajo Nation had given approval for
the Department to conduct a nationwide
search for an ICWA preferred home suitable for permanent placement.
{47} The district court found that the Department had made active efforts to comply with the ICWA placement preferences,
that the Department had proven beyond a
reasonable doubt that good cause existed
to deviate from the preferences, and that
the Navajo Nation concurred with the
placement under the circumstances. The
Department’s inability to place Children
in compliance with the ICWA placement
preferences stemmed primarily from
the unavailability of suitable families for
placement. There was no testimony to
indicate Children had special needs that
were unmet in their current placement.
We also note that there was no objection to
the placement by the parents or the Navajo
Nation. We conclude that the district court
appropriately found that there was good
cause to deviate from the placement preferences at the fourth permanency hearing.
The Termination of Parental Rights Trial
{48} The termination of parental rights
trial was held over three days: April 1,
2013, April 24, 2013, and May 17, 2013.
On April 24, 2013, Mother relinquished
her parental rights and the trial proceeded as to Father’s rights. At the trial,
the Department permanency planning
worker reported that T.J. was thriving in
the home where she was placed, that she
was excelling in school and was involved
in extracurricular activities, but that R.J.
and C.J. were experiencing behavioral
difficulties and had been placed in treatment foster care. The permanency planning worker also reported that Children
were maintaining their cultural ties, T.J.
was attending NACA and was involved in
their dance club, and the treatment foster
parents were reading books to R.J. and C.J.
to help them learn about their culture.
{49} The permanency planning worker
testified that she had maintained contact
with the Navajo Nation with regard to
Children’s placements. She stated that
the Department had continued its efforts
to identify and locate suitable homes for
placement, but that the relatives who had
been identified as of the date of the termination hearings had been unwilling or
unable to provide a suitable placement for
Children. She explained that home studies
had been initiated with relatives; however,
the relatives had withdrawn from the process. The permanency planning worker
reported that no Navajo or other Native
American placements had been identified
but that the Department was continuing
to work with the Navajo Nation to locate
other relatives or potential placements.
{50} A Department employee, who assisted Aunt during the home study process,
testified about the Department’s attempts
to license Aunt as a foster placement for
Children. In June 2011 Aunt contacted the
Department to be considered as a potential
placement. Aunt completed the Relative,
Adoptive, Foster Parent Training (RAFT),
a four day training class required for foster placement licensing. The Department
requires foster parents and members of
foster families over the age of seventeen
to complete RAFT training as part of the
home study process. The Department initiated a home study; however, Aunt’s mother
became very ill and Aunt withdrew from
the process in August 2011. At that time
interviews with family members, which
were needed to complete the home study,
had not been conducted.
{51} Aunt contacted the Department
again in December 2011 and the Department started the home study process
again. In February 2012, Aunt’s mother
was hospitalized and Aunt withdrew from
consideration as a placement for Children
in order to care for her. In November 2012,
Aunt contacted the Department and asked
to be considered a third time. The Department advised Aunt that her son would be
interviewed and required to participate
in the RAFT training. Aunt informed
the Department that her son would not
cooperate.
{52} On November 26, 2012, the Department sent Aunt a letter advising that the
requested interviews and RAFT training
were required by policy, and requested
that Aunt contact the Department by
December 3, 2012, to confirm her son’s
participation and avoid Aunt being withdrawn from consideration a third time.
Aunt called the Department and stated
that her son would attend RAFT training
scheduled for December 1, 2012; however,
her son did not attend the training. Aunt
later reported to the Department that her
son would not cooperate either with an
interview or with the training. The Department informed Aunt that it would have to
withdraw Aunt from consideration again.
{53} The Department’s home study
worker explained that the purpose of the
home study is to make sure that Children
are placed in a safe home and that the
people in the home are able to handle
Children’s behaviors and provide a safe
and nurturing environment. She stated
that the son’s participation was a critical
part of the home study because he would
share a room with R.J. and C.J., who had
been traumatized, and the son needed to
know how to interact with Children efficiently and helpfully. According to the
home study worker, the son had not lived
with small children in the home before
and the Department wanted to equip him
with skills that would help him interact
with Children.
{54} Aunt was present and testified at the
termination trial. She stated that when she
withdrew from consideration the third
time, interviews with the members of her
household had not yet been completed,
there had not been a report from her son’s
school, and she had not provided the Department with copies of her income tax
documents as requested. However, Aunt
indicated that she was still willing to provide a home for Children and that her son
was now willing to take the required classes.
{55} The QEW also testified at the termination trial. She stated that the Navajo
Nation was in support of the termination
of parental rights because Father had not
been able to complete his service plan and
had not demonstrated that he was able to
parent Children without substance abuse
or domestic violence, neither of which was
acceptable in the Navajo culture. The QEW
testified that returning Children to Father
would result in serious emotional or physical harm to Children and that Children,
who had been in custody for about two
years, needed permanency.
{56} As to Children’s placement, the
QEW reported that the Department conferred with the Navajo Nation when it was
changing Children’s temporary placement,
23
Advance Opinions
and that the Navajo Nation approved
Children’s temporary placements because
the Department did not have an ICWAcompliant placement. The QEW testified
that she was aware of the Department’s efforts to qualify Aunt as a relative placement
for Children. It was her understanding that
the last time Aunt was being considered as
a relative placement, she did not want to
take all three Children, only T.J. She also
reported that the Navajo Nation attempted
to find a family for placement, but that possible placements were too far from Father
and Mother to allow them to maintain a
parent-child relationship with Children.
{57} The QEW further testified that
the Department had made active efforts
to locate other Navajo and other Native
American families for temporary placement, and that the Navajo Nation believed
that there was good cause to deviate from
the ICWA preferences for Children’s temporary placements. She also reported that
the Navajo Nation had given approval to
open up a nationwide search for an ICWA
preferred home suitable for permanent
placement.
{58} The district court announced that
it would grant the Department’s motion
to terminate Father’s parental rights. The
court pointed out that since the Navajo
Nation had not yet approved a final, adoptive placement for Children, the issue of
placement of Children was ongoing and
Aunt was still a potential placement.
Motion for Reconsideration
{59} Father filed a motion to reconsider
ruling on May 28, 2013, and the hearing
on that motion was held on August 1,
2013. Father argued that it was a violation
of his due process rights to allow the Department’s policy that seventeen-year-olds
take the foster parent classes to override
the ICWA’s active efforts requirement to
not break up the family, which included
extended family. The district court denied
Father’s motion based on the information
and testimony in the record, including the
testimony of the QEW that the Department had made active efforts to prevent
the breakup of the Indian family.
{60} The court asked the Department to
make efforts to help Aunt comply with the
licensing requirements and to actively engage Aunt’s son to participate in the classes.
The Department indicated that after the
May 17, 2013, hearing, the Department
had been attempting to re-engage Aunt
in the process and that they had been
unable to reach her, but that the door was
definitely open.
24
The Fifth Permanency Hearing
{61} On August 26, 2013, the court held
a fifth permanency hearing. We consider
the district court’s determination of good
cause to deviate from the ICWA placement
preferences at this hearing because at the
time, Father’s parental rights had not yet
been terminated. Although the district
court had announced its intention to grant
the Department’s motion to terminate Father’s parental rights at the conclusion of
the termination trial in May 2013, Father
was not divested of his parental rights, and
thereby his interest in Children’s placement, until the district court’s judgment
terminating Father’s parental rights was
filed in October 2013. See State v. Lohberger, 2008-NMSC-033, ¶ 20, 144 N.M.
297, 187 P.3d 162 (“Informal expressions
of a court’s rulings are not appealable final
orders or judgments. For example, a trial
court’s oral announcement of a result is not
final, and parties to the case should have
no reasonable expectation of its finality.”);
see also Bouldin v. Bruce M. Bernard, Inc.,
1967-NMSC-155, ¶ 3, 78 N.M. 188, 429
P.2d 647 (“[A]n oral ruling by the trial
judge is not a final judgment. It is merely
evidence of what the court had decided
to do—a decision that the trial court can
change at any time before the entry of a
final judgment.”).
{62} At the fifth permanency hearing, the
Department reported that T.J. was doing
well in her foster placement, and that R.J.
and C.J. continued to require treatment
foster care as well as intensive therapeutic
treatment. The Department also reported
that Aunt had been visiting Children, but
that she had been telling Children things
about their parents that were upsetting
Children. The Department informed the
court that it had attempted to engage Aunt
in a fourth home study, that Aunt had not
fully participated in the home study, and
that Aunt withdrew from the process a
fourth time because she did not feel like it
was “fair to her son.”
{63} The QEW indicated that she had not
ruled out the Navajo Nation’s adoption unit
as to any potential placements, and that she
was exploring Children’s maternal relatives
for possible placement options. The QEW
reported that the Navajo Nation supported
Children’s current placement where they
were receiving treatment for their special
needs. The QEW also stated that T.J. has a
say in her adoptive placement, and that the
QEW supported T.J’s decision.
{64} The district court found that the
ICWA placement preferences had not been
followed; however, good cause existed for
deviating from the placement preferences
because no relative, no Navajo, and no
Indian homes had been identified and
approved for placement. We conclude the
district court appropriately found there
was good cause to deviate from the placement preferences.
Judgment Terminating Father’s Parental
Rights
{65} The district court filed its judgment
terminating Father’s parental rights on
October 29, 2013. In its judgment, the
district court found that the Department
had made active efforts to comply with
the ICWA placement preferences, that the
Department had proven that good cause
existed to deviate from the preferences,
and that the Navajo Nation concurred with
the placement under the circumstances.
{66} We conclude that the district court’s
findings that good cause existed throughout this case to deviate from the ICWA
placement preferences were supported by
sufficient evidence. As noted earlier, the
applicable standard was not before this
Court, but the district court’s findings
would have been appropriate no matter
what standard was applied. For purposes
of the BIA Guidelines, we note that the Department made consistent efforts to honor
Mother’s and Father’s request that Aunt be
considered as a placement for Children;
the Department and the Navajo Nation,
working in conjunction, were unable to
find an available ICWA preferred placement for Children; and the Department
demonstrated that Children’s cultural,
physical, mental, and emotional needs
were being addressed through Children’s
treatment plans, despite the unavailability
of ICWA preferred placements.
{67} It is also significant that the Navajo
Nation did not object to Children’s placement at any point during the case. The
Navajo Nation never expressed concern
that Children’s cultural, physical, emotional, and psychological needs were not
being met by their treatment plans. It is
also significant that the QEW recognized
that, with regard to Children’s foster care
placements, good cause existed to deviate
from the ICWA preferred placements.
Relative Placement Under New Mexico
Law
{68} New Mexico law expresses a preference that any child subject to the New
Mexico Abuse and Neglect Act be placed
with relatives, whether or not the child’s case
falls under the ICWA. See § 32A-4-25.1(D)
(“[T]he court shall determine whether the
Advance Opinions
[D]epartment has made reasonable efforts
to identify and locate all grandparents and
other relatives. The court shall also determine whether the [D]epartment has made
reasonable efforts to conduct home studies
on any appropriate relative expressing an
interest in providing permanency for . . .
[Children]. The court must ensure the consideration has been given to . . . [Children]’s
familial identity and connections.”); see also
8.10.3.16(F) NMAC (3/31/2010) (amended
2/29/2012) (the Department “shall make
every effort to identify, locate[,] and notify fit and willing relatives for consideration of placement of a child in custody
who requires out of home placement”);
8.10.7.17(A) NMAC (3/31/2010) (“[The]
department shall exercise due diligence
to identify and notify adult relatives of a
child’s removal within thirty . . . days of the
removal. The notice shall inform relatives
of their option to become a placement
resource for the child.”).
{69} To the extent that Father argues that
the Department failed to make reasonable
efforts to identify, locate, and conduct
home studies on willing and appropriate
relatives who could potentially serve as
placement for Children, as required by
Section 32A-4-25.1(D) and the related
regulations, we conclude the Department’s
efforts to place Children with relatives, as
outlined above, were sufficient to satisfy
those requirements.
Due Process
{70} We note that Father does not challenge the sufficiency of the evidence to
support the termination of his parental
rights. Instead, Father claims that the Department’s failure to place Children with
relatives or non-relative Indian families
violated his substantive and procedural
rights to due process. Father argues that
his substantive due process rights were
violated when the Department failed to
place Children with Aunt, in violation of
the ICWA, and thus he was deprived of his
right to maintain a familial relationship
with his children. Father also contends that
the district court denied him procedural
due process by entering a judgment terminating his parental rights in the absence
of full procedural compliance with the
placement preferences for Indian children
under New Mexico law and the ICWA.
{71} Because we have concluded that the
district court’s findings that good cause existed throughout this case to deviate from
the ICWA placement preferences were
supported by sufficient evidence, and that
the Department’s efforts to place Children
with relatives were sufficient to satisfy the
requirements of the New Mexico Abuse
and Neglect Act, Father’s substantive due
process argument fails.
{72} Father further argues that the Department wrongly interfered with Father’s
pursuit of his familial relationship with
Children by failing to make active efforts to
place Children with Aunt. Prior to termination of parental rights Father did have a
substantive due process right in a relationship with Children. See Santosky v. Kramer,
455 U.S. 745, 753 (1982). However, we
concluded that whether the Department
made active efforts to prevent the breakup
of the family is not an issue in this appeal.
Consequently, Father’s argument fails.
{73} Once his parental rights were
terminated, he no longer had that legal
right to a continuing familial relationship
with Children. See § 32A-4-29(L) (stating
“termina[tion of] parental rights divests
the parent of all legal rights and privileges
and dispenses with both the necessity for
the consent to or receipt of notice of any
subsequent adoption proceeding concerning the child[ren]”).
{74} Father’s procedural due process
claim is also based on the Department’s
foster care placement of Children in nonIndian homes. “[P]rocess is due when a
proceeding affects or interferes with the
parent-child relationship.” State ex rel.
Children, Youth & Families Dep’t v. Maria
C., 2004-NMCA-083, ¶ 24, 136 N.M. 53,
94 P.3d 796. Whether a parent was afforded
due process in abuse and neglect proceedings is a question we review de novo. State
ex rel. Children, Youth & Families Dep’t
v. Kathleen D.C., 2007-NMSC-018, ¶ 11,
141 N.M. 535, 157 P.3d 714. Procedural
due process rights are implicated when
a person has been denied “notice and an
opportunity to be heard at a meaningful
time and in a meaningful manner.” State
ex rel. Children,Youth & Families Dep’t v.
Christopher B., 2014-NMCA-016, ¶ 6, 316
P.3d 918 (internal quotation marks and
citation omitted). Because Father’s claim
relied on the Department’s placement of
Children during the pendency of the neglect proceedings, rather than his notice
of and opportunity to participate in the
termination proceedings, the argument
fails. We hold Father’s procedural due
process rights were not violated.
Fair and Impartial Proceedings
{75} Father contends that he was denied
fair and impartial termination proceedings
because the district court judge presiding
over Father’s termination proceedings
failed to recuse himself when Children
were placed in the foster home of a judge
serving within the same judicial district.
Father acknowledges that this issue was
not preserved. Nonetheless, Father urges
this Court to address the issue, claiming
that it affects Father’s fundamental right
to a fair and impartial hearing. See Rule
12-216(B)(2) NMRA (“This rule shall
not preclude the appellate court from
considering . . . questions involving . . .
fundamental error or fundamental rights
of a party.”).
{76} The first step in reviewing for fundamental error is to determine whether
an error occurred. Campos v. Bravo,
2007-NMSC-021, ¶ 8, 141 N.M. 801, 161
P.3d 846. If error has occurred, we then
consider whether the error was fundamental. Id. Father bases his claim that he was
deprived of fair and impartial proceedings, on Rule 21-211(A) NMRA, which
requires that a judge “disqualify himself
or herself in any proceeding in which
the judge’s impartiality might reasonably
be questioned.” Id. Father argues that it
could appear that the judge presiding over
Father’s case might consider the impact on
his colleague if the district court judge removed Children from the colleague’s foster
home to place them with Aunt. However,
the district court judge typically does
not determine placement when a child is
in the legal custody of the Department.
See NMSA 1978, § 32A-1-4(O) (2009)
(defining “legal custody” as “a legal status
created by order of the court . . . that vests
in a person, department or agency the
right to determine where and with whom
a child shall live” (internal quotation
marks omitted)). The suggestion that the
district court judge’s impartiality could
be reasonably questioned, based solely on
the fact that he and one of Children’s temporary foster parents sat concurrently as
judges for the same district, is insufficient
to require recusal. See Roybal v. Morris,
1983-NMCA-101, ¶ 7, 100 N.M. 305, 669
P.2d 1100 (“Suspicion of bias or prejudice
is not enough to disqualify a judge.”). We
conclude that the district court judge did
not err in not recusing himself.
CONCLUSION
{77} For the foregoing reasons, we affirm.
{78} IT IS SO ORDERED.
M. MONICA ZAMORA, Judge
I CONCUR:
MICHAEL D. BUSTAMANTE, Judge
JAMES J. WECHSLER, Judge (specially
concurring).
25
Advance Opinions
WECHSLER, Judge
(specially concurring).
{79} I concur in the result of the majority opinion. I write separately because I
would take a different path in affirming
the district court.
{80} The nature of the case on appeal
is significant. Father appeals the district
court’s judgment terminating his parental
rights to Children. In his request for relief
in his brief in chief, Father specifically asks
this Court to reverse the order terminating
those rights, in addition to requesting an
order requiring the Department to place
Children with his relatives. The majority
states that Father appealed, not in order
to restore his parental rights, but to require the Department to place Children
with Aunt or, alternatively, any interested
relative. Majority Opinion ¶¶ 1, 7. The
majority therefore focuses its analysis on
the foster care placement of Children prior
to termination of Father’s parental rights.
Majority Opinion ¶ 8. But regardless of
Father’s stated purposes that underlie his
request as characterized by the majority, I
consider Father’s appeal to be inextricably
linked to the proceeding to terminate his
parental rights pursuant to the ICWA.
{81} A termination of parental rights
proceeding is fundamentally different
from a foster care placement proceeding
under the ICWA. “Foster care placement”
means “any action removing an Indian
child from its parent or Indian custodian
for temporary placement . . . where the
parent or Indian custodian cannot have the
child returned upon demand, but where
parental rights have not been terminated[.]”
25 U.S.C. § 1903(1)(i) (emphasis added).
A “termination of parental rights” means
“any action resulting in the termination of
the parent-child relationship[.]” 25 U.S.C.
§ 1903(1)(ii) (internal quotation marks
omitted). By their own terms, “a foster care
placement proceeding seeks to temporarily
remove an Indian child from the child’s
parent or Indian custodian without terminating parental rights, while a termination
of parental rights proceeding seeks to end
the parent-child relationship.” Thompson
v. Fairfax Cnty. Dep’t of Family Servs.,
747 S.E.2d 838, 853 (Va. Ct. App. 2013)
(alteration, internal quotation marks, and
citation omitted). Father did not seek an
interlocutory appeal with regard to any
foster care placement of Children. Because
Father’s appeal arises from a termination
of parental rights proceeding, our inquiry
into Father’s claims must necessarily focus
on the allowable grounds upon which
Father may invalidate the termination of
his parental rights under the ICWA.1
{82} The ICWA contains a statutory provision that provides recourse to a parent
whose parental rights to an Indian child
have been terminated. That provision
states:
Any Indian child who is the
subject of any action for foster
care placement or termination of
parental rights under [s]tate law,
any parent or Indian custodian
from whose custody such child
was removed, and the Indian
child’s tribe may petition any
court of competent jurisdiction
to invalidate such action upon a
showing that such action violated
any provision of [25 U.S.C. §§]
1911, 1912, and 1913 of this title.
25 U.S.C. § 1914. As a threshold matter, the
plain language of this remedial provision
only provides a cause of action for violations of three sections of the ICWA. Section
1914 does not allow a parent to challenge
a termination of parental rights upon a
showing that the termination violated the
ICWA’s placement preferences enumerated
in 25 U.S.C. § 1915. Accordingly, I conclude
that 25 U.S.C. § 1914 controls our review of
Father’s appeal, and we cannot reverse the
district court’s judgment only upon a showing that Children’s foster care placement
violated the ICWA’s placement preferences.
Other jurisdictions have considered this
question and also have concluded that the
provisions of 25 U.S.C. § 1914 do not apply
to violations of Section 1915. See Doe v.
Mann, 285 F.Supp.2d 1229, 1241 (N.D. Cal.
2003) (“[I]t seems clear from the text of [25
U.S.C. §] 1914 that Congress intended to
provide a cause of action only for violations
of three ICWA sections.”); see also B.R.T.
v. Exec. Dir. of Soc. Serv. Bd., 391 N.W.2d
594, 601 (N.D. 1986) (stating that petition
or motion challenging “order terminating
parental rights . . . is an improper vehicle
for challenging the alleged violation of the
placement preferences mandated by [25
U.S.C. Section 1915].”); In the Interest of
J.W., 528 N.W.2d 657, 662 (Iowa Ct. App.
1995) (“The remedial provisions of [25
U.S.C. §] 1914 do not apply to violations of
[25 U.S.C. §] 1915.”); State ex rel. Juvenile
Dep’t of Multnomah Cnty. v. Woodruff, 816
P.2d 623, 625 (Or. Ct. App. 1991) (“Failure
to comply with the foster care placement
preferences in § 1915(b) is not a basis for
invalidating a court order terminating parental rights.”). Therefore, I disagree with
the majority that we can reach the issue of
Children’s placement in this case.
{83} It does seem that, theoretically,
Father could have raised the issue of Children’s placement under 25 U.S.C. § 1914
by alleging a violation of the “active efforts” requirement outlined in 25 U.S.C. §
1912(d). In other words, Father could have
posited that CYFD’s failure to follow the
ICWA’s placement preferences impacted
his ability to meet the requirements of
the Department’s remedial services and
rehabilitative programs, thus constituting
a failure by CYFD to engage in “active efforts . . . designed to prevent the breakup
of the Indian family.]” 25 U.S.C § 1912(d).
The district court, in its judgment terminating Father’s parental rights, found “that
the Department has made active efforts
to comply with the preferences . . . [and]
the active efforts requirement [of Section 1912(d)] does not apply to extended
family[.]” Our courts have not decided
whether a failure to engage in “active efforts” may serve as a basis for invalidating
a termination of parental rights judgment
under the ICWA, but that question is not
before us here. Father does not directly
attack the district court’s finding or raise
a specific argument that the “active efforts” requirement of 25 U.S.C. § 1912(d)
applies to both his extended family and
compliance with the ICWA’s placement
preferences pursuant to 25 U.S.C. § 1915.
The majority also notes that CYFD’s “active efforts” are not at issue in this appeal,
albeit for slightly different reasons, because
Father did not adequately raise the issue.
Majority Opinion ¶ 15.
{84} Accordingly, for the foregoing reasons, I would affirm the district court’s
judgment due to Father’s failure to state an
adequate basis under the ICWA for invalidation of the termination of his parental
rights.
JAMES J. WECHSLER, Judge
1 Father also argues that the Department failed to comply with the Abuse and Neglect Act in its placement of Children, but Father does not raise the question of CYFD’s compliance with the Abuse and Neglect Act with regard to the termination of his parental
rights. Nevertheless, the Abuse and Neglect Act provides that “[t]he termination of parental rights involving a child subject to the
federal [ICWA] shall comply with the requirements of that act.” Section 32A-4-28(E).
26
Advance Opinions
Opinion Number: 2015-NMCA-089
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ERIC BERNARD,
Defendant-Appellant
Docket No. 33,287 (filed June 23, 2015)
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
WILLIAM C. BIRDSALL, District Judge
HECTOR H. BALDERAS
Attorney General
M. ANNE KELLY
Assistant Attorney General
Albuquerque, New Mexico
for Appellee
Opinion
James J. Wechsler, Judge
{1} A jury convicted Defendant Eric Bernard of four counts of receiving or transferring stolen vehicles or motor vehicles,
contrary to NMSA 1978, Section 30-16D4(A) (2009), for his unlawful possession
of a stolen enclosed trailer, a snowmobile,
and two side-by-side all-terrain vehicles
(ATVs). Defendant appeals his convictions
on various grounds. Defendant contends
that, based on his interpretation of Section 30-16D-4(A), the jury instructions
improperly omitted an essential element
of the offense of possession of a stolen
vehicle under the statute. Due to the omission of this essential element, Defendant
also argues that the evidence presented at
trial was insufficient to support his convictions. Defendant further contends that his
four convictions based on a single statute
violate the double jeopardy protection
against multiple punishments for the same
offense. Finally, Defendant raises claims of
ineffective assistance of counsel. We hold
that (1) the jury instructions accurately
followed the language of the statute and
contained all the essential elements of the
offense of possession of a stolen vehicle,
(2) Defendant’s sufficiency of evidence
argument is without merit due to his
incorrect interpretation of the statute,
(3) Defendant’s four separate convictions
JORGE A. ALVARADO
Chief Public Defender
NICOLE S. MURRAY
Assistant Appellate Defender
MARY BARKET
Assistant Appellate Defender
for Appellant
do not violate his double jeopardy rights
because Defendant’s possession of each
stolen vehicle constitutes four distinct
acts, and (4) Defendant failed to make a
prima facie case of ineffective assistance
of counsel. Accordingly, we affirm Defendant’s convictions.
BACKGROUND
{2}Defendant received four convictions
for the possession of four stolen vehicles,
three of which were unlawfully taken in
2012 from Tim Kelley’s property located
near Durango, Colorado. At the time of
the theft, Kelley and his family were away
from the property recovering from multiple injuries they had sustained earlier
that year when their home was destroyed
by a propane leak explosion. Jerry Spinnichia, who was convicted in Colorado
of the theft of Kelley’s vehicles, testified
at Defendant’s trial that he, Defendant,
and another person drove onto Kelley’s
property and located a twenty-seven foot
enclosed trailer. According to Spinnichia’s
testimony, the perpetrators loaded some
items in the trailer, hitched the trailer to
their vehicle, and towed the trailer off the
property. Included among the stolen items
inside the trailer were Kelley’s snowmobile
and Polaris Ranger side-by-side ATV.
Spinnichia also testified that he and Defendant then drove the enclosed trailer
containing the snowmobile and the Polaris
ATV to the home of Steven Murch near
Aztec, New Mexico. Police officers testified
that they later recovered the stolen vehicles
from Murch’s property. Inside the trailer,
officers also found a Honda side-by-side
ATV that had previously been reported
stolen from a home located in San Juan
County, New Mexico.
{3} Defendant was arrested and charged
with four counts of receiving or transferring
stolen vehicles or motor vehicles, in violation
of Section 30-16D-4(A), for his possession of
the stolen enclosed trailer, the snowmobile,
the Polaris ATV, and the Honda ATV. The
relevant text of the statute reads:
A.Receiving or transferring a
stolen vehicle or motor vehicle
consists of a person who, with
intent to procure or pass title
to a vehicle or motor vehicle as
defined by the Motor Vehicle
Code [66-1-1 NMSA 1978] that
the person knows or has reason to
believe has been stolen or unlawfully taken, receives or transfers
possession of the vehicle or motor vehicle from or to another or
who has in the person’s possession
any vehicle that the person knows
or has reason to believe has been
stolen or unlawfully taken[.]
Section 30-16D-4(A) (Emphasis added).
{4} After hearing the evidence at trial, the
jury received instructions for the essential
elements of the offense of possession of a
stolen vehicle under the statute. The instructions given, which conformed with the
uniform jury instructions, specified that the
State must prove beyond a reasonable doubt
that Defendant had possession of each
stolen vehicle and “knew or had reason to
know that [the] vehicle[s] had been stolen
or unlawfully taken[.]” UJI 14-1652. The
jury convicted Defendant on all four counts
for his possession of the stolen enclosed
trailer, the snowmobile, the Polaris ATV,
and the Honda ATV, contrary to Section
30-16D-4(A). Defendant raises four issues
on appeal that we address in turn.
JURY INSTRUCTIONS FOR
POSSESSION OF A STOLEN
VEHICLE, SECTION 30-16D-4(A)
{5}Although the trial court instructed
the jury in accordance with the applicable uniform jury instructions in this
case, Defendant first argues that the jury
instructions were fundamentally flawed
by failing to include an essential element
of the offense of possession of a stolen
vehicle. Defendant’s argument hinges on
his construction of Section 30-16D-4(A).
Defendant claims that statutory changes
passed by the Legislature in 2009 made
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Advance Opinions
the “intent to procure or pass title to a
vehicle” an essential element of the offense
of unlawful possession of a stolen vehicle
under the statute. If, as Defendant asserts,
the Legislature intended “intent to procure
or pass title to a vehicle” to be an essential
element, then the jury should have been
instructed to that effect. See Rule 5-608(A)
NMRA (“The court must instruct the jury
upon all questions of law essential for a
conviction of any crime submitted to the
jury.”). Defendant failed to object to the
instructions at trial, but he argues on appeal that omission of this essential element
from the jury instructions constituted
fundamental error that compels reversal
of his convictions. State v. Barber, 2004NMSC-019, ¶ 20, 135 N.M. 621, 92 P.3d
633 (“[F]ailure to instruct the jury on an
essential element, as opposed to a definition, ordinarily is fundamental error even
when the defendant fails to object or offer
a curative instruction.”); see also State v.
Swick, 2012-NMSC-018, ¶ 55, 279 P.3d
747 (“[W]hen the jury instructions have
not informed the jury that the [s]tate had
the burden to prove an essential element
. . . convictions have been reversed for
fundamental error.”).
Standard of Review
{6} Our determination whether the “intent
to procure or pass title to a vehicle” is an essential element of the offense of possession
of a stolen vehicle under Section 30-16D4(A) requires our interpretation of the statute and is a question of law that we review
de novo. State v. Tafoya, 2010-NMSC-019,
¶ 9, 148 N.M. 391, 237 P.3d 693. “Our
primary goal when interpreting statutory
language is to give effect to the intent of
the [L]egislature.” State v. Torres, 2006NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d
1284. We first examine the statute’s plain
language, “which is the primary indicator
of legislative intent[.]” Gonzales v. State
Pub. Emps. Ret. Ass’n, 2009-NMCA-109,
¶ 13, 147 N.M. 201, 218 P.3d 1249 (internal
quotation marks and citation omitted). “In
addition to looking at the statute’s plain
language, we will consider its history and
background and how the specific statute
fits within the broader statutory scheme.”
Chatterjee v. King, 2012-NMSC-019, ¶ 12,
280 P.3d 283. When interpreting a statute
that has been amended, “the amended
language must be read within the context
of the previously existing language, and the
old and new language, taken as a whole,
comprise the intent and purpose of the
statute[.]” Vigil v. Thriftway Mktg.Corp.,
1994-NMCA-009, ¶ 15, 117 N.M. 176, 870
28
P.2d 138. We must also “read the statute in
its entirety and construe each part in connection with every other part to produce a
harmonious whole.” Key v. Chrysler Motors
Corp., 1996-NMSC-038, ¶ 14, 121 N.M.
764, 918 P.2d 350.
History and Plain Meaning of Section
30-16D-4
{7} Prior to 2009, the statute codifying the
crime of receiving or transferring stolen
vehicles or motor vehicles resided in the
Motor Vehicle Code. That language read:
Any person who, with intent to
procure or pass title to a vehicle
or motor vehicle which he knows
or has reason to believe has been
stolen or unlawfully taken, receives, or transfers possession
of the same from or to another,
or who has in his possession any
vehicle which he knows or has
reason to believe has been stolen
or unlawfully taken, . . . is guilty
of a fourth degree felony[.]
NMSA 1978, Section 66-3-505 (1978). In
State v. Wise, 1973-NMCA-138, 85 N.M.
640, 515 P.2d 644, this Court settled the
question of whether the statute defined
one crime or two separate crimes. The defendant in Wise challenged his conviction
under the statute for unlawful possession
of a stolen vehicle by contending that the
language specifically required “the vehicle
[to] have been . . . possessed by the accused with the intent to procure or pass
title to it[.]” Id. ¶ 4 (internal quotation
marks omitted). We disagreed with the
defendant’s construction of the statute and
held that the phrase “with intent to procure
or pass title to a vehicle” did not apply to
the act of possession of a stolen vehicle.
Id. Accordingly, this Court explained, the
“statute defines two separate crimes: (1)
taking, receiving, or transferring possession of a vehicle with knowledge or reason
to believe it is stolen and with intent to
procure or pass title, and (2) unlawful possession of a stolen vehicle.” Id. ¶ 3.
{8} In 2009, the Legislature amended the
language of the crime of receiving or transferring stolen vehicles or motor vehicles
and recompiled the statute in the Criminal
Code as Section 30-16D-4. The amended
text of the statute after the Legislature’s
action reads:
A.Receiving or transferring a
stolen vehicle or motor vehicle
consists of a person who, with
intent to procure or pass title
to a vehicle or motor vehicle as
defined by the Motor Vehicle
Code [66-1-1 NMSA 1978] that
the person knows or has reason to
believe has been stolen or unlawfully taken, receives or transfers
possession of the vehicle or motor
vehicle from or to another or who
has in the person’s possession any
vehicle that the person knows or
has reason to believe has been
stolen or unlawfully taken[.]
Section 30-16D-4(A) (2009).
{9}With the exception of a new subsection related to penalties, the 2009 amendments left the statute largely unchanged.
See State v. Brown, 2010-NMCA-079, ¶ 28
n.1, 148 N.M. 888, 242 P.3d 455 (stating
that Section 30-16D-4 is “essentially the
same” in its recompiled and amended form
when compared to the previous version of
the statute). Most notably for our purposes
here, the Legislature removed the comma
before the phrase “or who has in the person’s possession any vehicle that the person
knows or has reason to believe has been
stolen or unlawfully taken[.]” Compare
Section 30-16D-4 and Section 66-3-505.
Defendant argues that the Legislature’s
deletion of the comma eliminated the
separate and distinct offense of unlawful
possession of a stolen vehicle delineated
under the statute prior to 2009 and established by this Court in Wise. We disagree.
{10} According to Defendant’s interpretation, the comma previously functioned
to separate the offense of possession of a
stolen vehicle from the offense of receiving
or transferring a stolen vehicle or motor
vehicle. Defendant claims that, by discarding the comma, the Legislature intended to
graft the mens rea requirement of “intent to
procure or pass title to a vehicle” onto the
offense of possession of a stolen vehicle.
Defendant concludes that this mens rea requirement, which previously applied only
to receiving or transferring a stolen vehicle
or motor vehicle, now equally applies
to the actus reus element of possession
of a stolen vehicle. Defendant therefore
argues that the jury instructions given at
trial were an incorrect statement of the
law because they have not been updated
to reflect the statutory change. We believe
that Defendant overstates the significance
of the Legislature’s removal of the comma.
{11} Reading the statute as a whole, our
review of the 2009 amendments indicates
that the Legislature did not make substantive changes that materially affect the
statute in the manner Defendant suggests.
See New Mexico Pharm. Ass’n v. State, 1987NMSC-054, ¶ 8, 106 N.M. 73, 738 P.2d
Advance Opinions
1318 (“In interpreting statutes, we should
read the entire statute as a whole so that
each provision may be considered in relation to every other part.”). Primarily, the
Legislature inserted the phrase “[r]eceiving
vehicle consists of ” to the beginning of the
statute’s provisions. The Legislature further
clarified that the vehicles or motor vehicles
referenced in the statute are those “defined
by the Motor Vehicle Code[.]” Although the
Legislature also added a new subsection to
the statute that increases the penalties for
each offense under the statute, the amendments to Section 30-16D-4(A) demonstrate
that the Legislature sought to clarify the
statute’s text rather than change existing
law. See Piña v. Gruy Petroleum Mgmt.
Co., 2006-NMCA-063, ¶ 22, 139 N.M.
619, 136 P.3d 1029 (“[T]he [L]egislature
can amend an existing law for clarification
purposes just as effectively and certainly as
for purposes of change.” (alteration, internal
quotation marks, and citation omitted)).
We decline to adopt Defendant’s interpretation that a small punctuation revision is
a clear signal of legislative intent to nullify
the precedent set forth in Wise and effect a
substantial change in the mens rea requirement applicable to the offense of possession
of a stolen vehicle. See Citation Bingo, Ltd.
v. Otten, 1996-NMSC-003, ¶ 21, 121 N.M.
205, 910 P.2d 281 (“[When interpreting a
statute] we presume that the [L]egislature
was aware of existing statutory and common law and did not intend to enact a law
inconsistent with existing law.”).
{12} Our conclusion is reinforced by
certain principles of statutory construction. First, the lack of a comma before
the phrase “or who has in the person’s
possession any vehicle” is not dispositive
because the Legislature’s use of the word
“or” indicates that a person who possesses
a stolen vehicle is independent from “a
person who, with intent to procure or
pass title to a vehicle . . . receives or transfers possession of the vehicle[.]” Section
30-16D-4(A). “As a rule of construction,
the word ‘or’ should be given its normal
disjunctive meaning unless the context
of a statute demands otherwise.” Wilson
v. Denver, 1998-NMSC-016, ¶ 17, 125
N.M. 308, 961 P.2d 153 (internal quotation marks and citation omitted). Second,
under the doctrine of last antecedent, we
believe that the phrase “with intent to
procure or pass title to a vehicle” applies
to a person who receives or transfers a
stolen vehicle and that the Legislature did
not intend to apply the phrase to a person
“who has in the person’s possession any
vehicle[.]” Section 30-16D-4(A); see In re
Goldsworthy’s Estate, 1941-NMSC-036, ¶
21, 45 N.M. 406, 115 P.2d 627 (“[R]elative
and qualifying words, phrases, and clauses
are to be applied to the words or phrase
immediately preceding, and are not to be
construed as extending to or including
others more remote.”).
{13} We conclude that the statute’s language is plain and unambiguous. Accordingly, we disagree with Defendant’s interpretation of the statute and hold that the
“intent to procure or pass title to a vehicle”
is not an essential element of the crime of
possession of a stolen vehicle, which is a
separate and distinct offense under Section 30-16D-4(A). The jury instructions
accurately followed the language of the
statute and contained all the essential elements of the offense. Therefore, the jury
instructions were appropriate as given.
State v. Gunzelman, 1973-NMSC-055,
¶ 26, 85 N.M. 295, 512 P.2d 55 (holding
that “instructions are sufficient which
substantially follow the language of the
statute or use equivalent language”), overruled on other grounds by State v. Orosco,
1992-NMSC-006, ¶ 7, 113 N.M. 780, 833
P.2d 1146.
SUFFICIENCY OF EVIDENCE
{14} Defendant also challenges the sufficiency of the evidence underlying his convictions by employing the same statutory
interpretation argument he used to attack
the jury instructions. Defendant argues
that because the “intent to procure or pass
title to a vehicle” is an essential element of
the offense of possession of a stolen vehicle
under the statute, the State failed to present
evidence sufficient to prove this essential
element beyond a reasonable doubt. Having decided “intent to procure or pass title
to a vehicle” is not an essential element of
the offense of possession of a stolen vehicle
under Section 30-16D-4(A), we conclude
that Defendant’s sufficiency of evidence
argument is without merit. “The sufficiency
of the evidence is assessed against the jury
instructions because they become the law of
the case.” State v. Quinones, 2011-NMCA018, ¶ 38, 149 N.M. 294, 248 P.3d 336.
DOUBLE JEOPARDY
{15} Defendant next contends that
his four convictions violate the Double
Jeopardy Clause of the Fifth Amendment
of the United States Constitution. The
Double Jeopardy Clause protects “criminal
defendant[s] against multiple punishments
for the same offense.” Swick, 2012-NMSC018, ¶ 10 (internal quotation marks and
citation omitted). A double jeopardy claim
is a question of law that we review de novo.
Id.
{16} Double jeopardy challenges implicate two general categories of multiplepunishment cases. First, cases in which
a defendant’s single course of conduct
results in multiple charges under different criminal statutes are classified as
“double-description” cases. Swafford v.
State, 1991-NMSC-043, ¶ 9, 112 N.M. 3,
810 P.2d 1223. Second, cases in which a
defendant faces multiple charges under
the same criminal statute for the same conduct are classified as “unit of prosecution”
cases. Id. ¶ 8. Defendant advances a unit of
prosecution claim by arguing that his four
convictions based on a single statute violate the double jeopardy protection against
multiple punishments for the same offense.
He asserts that his possession of the four
stolen vehicles constitutes a single course
of conduct that is punishable as only one
violation of the criminal statute.
{17} Unit of prosecution cases are subject to a two-step analysis that courts
utilize to discern legislative intent. Swick,
2012-NMSC-018, ¶ 33. “The relevant
inquiry in [a unit of prosecution case] is
whether the [L]egislature intended punishment for the entire course of conduct
or for each discrete act.” Swafford, 1991NMSC-043, ¶ 8. In the first step of the
analysis, we look to the language of the
criminal statute to determine whether
the Legislature has defined the unit of
prosecution. Swick, 2012-NMSC-018, ¶
33. Our inquiry is complete if the unit of
prosecution is spelled out in the statute.
Id. However, if the language is ambiguous, we proceed to the second step of the
analysis in which our task is to “determine
whether a defendant’s acts are separated
by sufficient ‘indicia of distinctness’ to justify multiple punishments under the same
statute.” State v. Bernal, 2006-NMSC-050,
¶ 14, 140 N.M. 644, 146 P.3d 289. If there
is not sufficient indicia of distinctness to
separate the defendant’s acts, we apply the
rule of lenity to our interpretation of the
statute. Id. The rule of lenity requires that
we interpret the statute in the defendant’s
favor by invoking the presumption that
the Legislature did not intend to create
separately punishable offenses. State v.
Santillanes, 2001-NMSC-018, ¶ 34, 130
N.M. 464, 27 P.3d 456.
Statutory Language of Section 30-16D4(A)
{18} We now examine the statute for
the crime of receiving or transferring
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Advance Opinions
stolen vehicles or motor vehicles. Section
30-16D-4(A) provides that “[r]eceiving
vehicle consists of a person . . . who has in
the person’s possession any vehicle that the
person knows or has reason to believe has
been stolen or unlawfully taken[.]” From
our review of the language and history of
Section 30-16D-4, it is unambiguous that
the Legislature intended the meaning of
“vehicle” to refer to the Motor Vehicle
Code’s definition of the term. See Maestas
v. Zager, 2007-NMSC-003, ¶ 12, 141 N.M.
154, 152 P.3d 141 (“When construing
a statute, we read the entire statute as a
whole, considering provisions in relation to one another.”). The Motor Vehicle
Code’s definition of “vehicle” encompasses
numerous different types of vehicles and
motor vehicles.1 The statutory language,
however, does not provide clear guidance
as to whether the specific type of vehicle
unlawfully possessed may constitute the
proper unit of prosecution for multiple
violations. The statute is also silent as to
whether the number of vehicles unlawfully possessed by a defendant may be
charged as separate offenses. We follow
the reasoning expressed in recent unit of
prosecution cases by this Court and our
Supreme Court that have found the use
of the word “any” unconvincing to resolve
whether the Legislature intended to allow
multiple units of prosecution under a statute. See State v. DeGraff, 2006-NMSC-011,
¶ 33, 139 N.M. 211, 131 P.3d 61 (discussing
that the tampering with evidence statute’s
use of the word “any” was not persuasive
in determining the Legislature’s intent
regarding the proper unit of prosecution);
see also State v. Olsson, 2014-NMSC-012,
¶ 21 324 P.3d 1230 (discussing that the
possession of child pornography statute’s
use of the word “any” was not persuasive
in determining the Legislature’s intent
regarding proper unit of prosecution).
{19} Therefore, because ambiguity regarding the proper unit of prosecution under the statute persists, we now turn to the
second step in our analysis to determine
whether Defendant’s acts are sufficiently
distinct.
Distinctness of Defendant’s Acts
{20} Defendant argues that his possession
of the four stolen vehicles constituted only
one violation of the statute because the
snowmobile, the Polaris ATV, and the Honda ATV were contained inside the enclosed
trailer and “delivered simultaneously, as
one item.” We note that the trial record
fails to support Defendant’s assertion that
the snowmobile and the two ATVs were
contained inside the trailer simultaneously.
Nevertheless, on this premise, Defendant
urges us to extend application of the
“single-larceny doctrine” to the offense of
possession of a stolen vehicle under Section
30-16D-4(A). The single-larceny doctrine
provides that “the stealing of property from
different owners at the same time and the
same place constitutes only one larceny.”
State v. Brown, 1992-NMCA-028, ¶ 6, 113
N.M. 631, 830 P.2d 183. “[T]he doctrine
is a canon of construction used when the
Legislature’s intent regarding multiple punishments is ambiguous.” State v. AlvarezLopez, 2004-NMSC-030, ¶ 43, 136 N.M.
309, 98 P.3d 699.
{21} We decline to extend the single-larceny doctrine to this case. Even though our
courts have recognized the validity of the
single-larceny doctrine, see Brown, 1992NMCA-028, ¶¶ 6, 13 (recognizing the
validity of the single-larceny doctrine in
New Mexico), we see no indication that the
doctrine supersedes the well-established
two-step legislative intent inquiry in a unit
of prosecution case. Defendant’s reliance
on State v. Watkins, 2008-NMCA-060, 144
N.M. 66, 183 P.3d 951, as evidence of our
application of the doctrine in a unit of
prosecution case, is misplaced. In Watkins,
we followed the holding of Alvarez-Lopez
and held the single-larceny doctrine was
inapplicable to a unit of prosecution
analysis under the receiving stolen property statute. Watkins, 2008-NMCA-060,
¶ 11. Our courts have similarly declined
to extend the single-larceny doctrine to
determinations of the proper unit of pros-
ecution for other statutory crimes. See e.g.,
Bernal, 2006-NMSC-050, ¶ 30 (declining
to extend the single-larceny doctrine to
determine the unit of prosecution for the
crime of robbery); State v. Boergadine,
2005-NMCA-028, ¶ 29, 137 N.M. 92, 107
P.3d 532 (declining to extend the singlelarceny doctrine to determine the unit of
prosecution for the crime of fraud); State
v. Morro, 1999-NMCA-118, ¶ 26, 127 N.M.
763, 987 P.2d 420 (declining to extend
the single-larceny doctrine to determine
the unit of prosecution for the crime of
defacing tombs). Additionally, the singlelarceny doctrine by its own definition
refers to the taking of property, and application of the single-larceny doctrine is
inappropriate in this case because the jury
was not required to find that Defendant
actually unlawfully took the vehicles.
{22} In support of his argument for extension of the single-larceny doctrine to
possession of a stolen vehicle, Defendant
cites Sanchez v. State for the proposition
that “[t]he simultaneous possession of
stolen items owned by different individuals is a single act constituting one offense.”
1982-NMSC-012, ¶ 10, 97 N.M. 445, 640
P.2d 1325. Although we recognize Sanchez’s general rule regarding simultaneous
possession, Sanchez was decided prior to
Swafford and was not a unit of prosecution case.2 For these reasons, we decline
to depart from “the proper framework for
determining legislative intent” set forth in
Swafford. Watkins, 2008-NMCA-060, ¶ 18;
see State v. Travarez, 1983-NMCA-003, ¶ 5,
99 N.M. 309, 657 P.2d 636 (“The Court of
Appeals must follow applicable precedents
of our Supreme Court, but in appropriate
situations we may consider whether Supreme Court precedent is applicable.”). Instead, we adhere to the traditional indicia
of distinctness analysis, which “amounts
to a canon of construction” designed to
ascertain legislative intent. Morro, 1999NMCA-118, ¶ 11.
{23} Herron v. State, 1991-NMSC-012,
111 N.M. 357, 805 P.2d 624, established
the unit of prosecution indicia of distinct-
1 NMSA 1978, Section 66-1-4.19 (B) (2005) defines “vehicle” as “every device in, upon or by which any person or property is or
may be transported or drawn upon a highway[.]” A “motor vehicle” is defined as “every vehicle that is self-propelled and every vehicle
that is propelled by electric power obtained from batteries[.]” NMSA 1978, Section 66-1-4.11(H) (2007). State v. Richardson, 1992NMCA-041, ¶ 5, 113 N.M. 740, 832 P.2d 801 (“[A] ‘motor vehicle’ is but a subset or subgroup of the larger category ‘vehicle’[.]”); cf.
State v. Natoni, 2012-NMCA-062, ¶ 14, 282 P.3d 769 (holding that an ATV qualifies as a “vehicle” for purposes of Section 66-1-4.19(B)
and the Motor Vehicle Code’s DWI statute, NMSA 1978, § 66-8-102(A) (2010)).
2Sanchez involved a trial court’s dismissal of an indictment alleging the defendants “received, retained or disposed of 72 different
items that belonged to four separate parties.” 1982-NMSC-012, ¶ 2 (internal quotation marks and citation omitted).The indictment
combined the charges into one count, enhancing the crime to a third degree felony. The Court held that the indictment was “extremely
vague” and failed “to inform the defendants of the nature of the charge so that surprise is avoided.” Id. ¶¶ 14-15.
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Advance Opinions
ness “under the modern analysis.” Bernal,
2006-NMSC-050, ¶ 15. Although Herron’s
factors were developed in the context of a
sexual assault case, our courts have generally applied Herron’s six factor test in a
broad range of unit of prosecution cases.
See, e.g., Brown, 1992-NMCA-028, ¶¶ 6-13
(applying the Herron test to multiple
convictions for larceny); State v. Handa,
1995-NMCA-042, ¶¶ 19-27, 120 N.M. 38,
897 P.2d 225 (applying the Herron test to
multiple convictions for assault); State v.
Barr, 1999-NMCA-081, ¶¶ 16-23, 127 N.M.
504, 984 P.2d 185 (applying the Herron test
to multiple convictions of contributing to
the delinquency of a minor); Morro, 1999NMCA-118, ¶¶ 19-26 (applying the Herron
test to multiple convictions for defacing
tombs); Boergadine, 2005-NMCA-028, ¶¶
21-27 (applying the Herron test to multiple
convictions for fraud); DeGraff, 2006NMSC-011, ¶¶ 35-38 (applying the Herron
test to multiple convictions for tampering
with evidence); Bernal, 2006-NMSC-050,
¶¶ 20-21 (applying the Herron test to multiple convictions for attempted robbery).
The Herron test consists of the following six
factors: “(1) temporal proximity of the acts;
(2) location of the victim(s) during each act;
(3) existence of an intervening event; (4)
sequencing of acts; (5) defendant’s intent
as evidenced by his conduct and utterances;
and (6) the number of victims.” Boergadine,
2005-NMCA-028, ¶ 21 (internal quotation
marks and citation omitted).
{24} In considering the application of the
unit of prosecution indicia of distinctness
analysis to Defendant’s acts, we are mindful of our Supreme Court’s recent opinion
in Olsson. Olsson was the first unit of prosecution case in which our courts considered application of the Herron factors to a
possessory offense. The two defendants in
Olsson claimed their multiple convictions
for possession of child pornography violated double jeopardy. 2014-NMSC-012,
¶¶ 5, 9. Our Supreme Court was unable to
discern the unit of prosecution from the
language of the statute, which criminalizes
the intentional possession of “any obscene
visual or print medium” if the accused
“knows or has reason to know that one or
more of the participants [depicted in the
medium] is a child under eighteen years
of age.” Id. ¶¶ 19, 23; NMSA 1978, Section
30-6A-3(A) (2007). In the second step of
its analysis, the Court found “problem[s]
with attempts to determine whether conduct in a child pornography possession
case is distinct under Herron[,]” stating
that cases of unlawful possession “do not
so neatly fit the Herron mold because it is
unclear when each of the factors would apply and the factors are inconclusive when
they do apply.” Olsson, 2014-NMSC-012,
¶ 39. In particular, the Court emphasized
the impracticality of applying the Herron
factors because Herron is “specifically
tailored to a case where a defendant has
direct contact with a victim.” Id. The conduct in question included possession of
computer files containing multiple images
and videos, some of which were created
or downloaded on separate occasions and
stored on an external hard drive. Id. ¶ 9.
Explaining that Herron did not apply, the
Court reasoned that application of the
Herron factors to a defendant’s download
or viewing of an image was uncertain. Id. ¶
39. The Court noted that “[i]t is difficult to
ascertain a defendant’s intent at the time”
the images are downloaded or viewed,
that “[t]he location of the victim during
a download or viewing is not relevant[,]”
and that “[t]he number of victims could
possibly be established, but the circumstance of multiple victims can exist from
possession of a single videotape or a single
computer diskette[.]” Id. The Court found
that the analysis was further complicated
because “download dates are not included
in the statutory language nor alluded to
in the purpose and history.” Id. ¶ 42. As a
result, in concluding that the defendants
could only be charged with one count
of possession of child pornography, the
Court held “that the Herron factors are
not applicable in possession cases and that
the indicia of distinctness factors do not
determine the unit of prosecution.” Id.
{25} We read Olsson to preclude the use of
the Herron factors in possession cases due
to the “impracticability” of its application
in determining the proper unit of prosecution. Id. However, we do not believe that
Olsson’s abandonment of Herron’s fixed
formula requires a wholesale departure
from an indicia of distinctness analysis
if the facts of a unit of prosecution case
render such analysis practicable. See Swafford, 1991-NMSC-043, ¶ 27 (“The conduct
question depends to a large degree on the
elements of the charged offenses and the
facts presented at trial.”). Our Supreme
Court in Olsson faced the difficult question of whether the defendants’ possession of numerous separate computer files
and dozens of images and videos, which
were downloaded at various times and
depicted multiple victims and sexual acts,
constituted separate offenses. In this case,
Defendant’s unlawful possession of four
stolen vehicles presents a significantly different factual scenario and crime from that
in Olsson. Our task is to discern whether
Defendant’s acts of possession of a trailer,
a snowmobile, and two ATVs are sufficiently distinct to justify four convictions
for possession of a stolen vehicle. Because
the situation presented here is decidedly
less complex, we next consider whether
suitable indicia of distinctness may be
applied to determine whether Defendant
committed four distinct acts of possession
punishable under the same statute.
{26} In the absence of Herron’s factors, we
look to the “guiding principles” previously
set forth by our Supreme Court in Swafford
in determining whether Defendant’s acts
are sufficiently distinct to justify multiple
punishments under a single statute. Swafford, 1991-NMSC-043, ¶ 27. Even though
Swafford was a double description case,
the analysis in a unit of prosecution case
is “substantially similar[.]” Bernal, 2006NMSC-050, ¶ 16. “In each case, we attempt
to determine, based upon the specific facts
of each case, whether a defendant’s activity is better characterized as one unitary
act, or multiple, distinct acts, consistent
with legislative intent.” Id. Swafford noted
that acts may be “sufficiently separated by
either time or space (in the sense of physical distance between the places where the
acts occurred)[.]” 1991-NMSC-043, ¶ 28.
If a case cannot be resolved from time and
space considerations, then “resort must be
had to the quality and nature of the acts or
to the objects and results involved.” Id. We
therefore employ these general principles
in fashioning an indicia of distinctness
analysis under Section 30-16D-4(A).
{27} We first examine time and space
considerations to determine whether Defendant’s possession of the enclosed trailer,
the snowmobile, the Polaris ATV, and
the Honda ATV constituted four distinct
acts. The question is whether there was
evidence that Defendant, knowing that
the vehicles were stolen, possessed each
vehicle at a separate location and time
sufficient to justify multiple punishments.
The jury heard evidence that Defendant
and Spinnichia entered New Mexico from
Colorado in possession of the stolen trailer,
the snowmobile, and the Polaris ATV,
which Defendant and Spinnichia took to
Murch’s home in Aztec, New Mexico. The
jury also heard evidence that the snowmobile was removed from the trailer and that
Defendant rode the Polaris ATV while at
Murch’s property. Although witness testimony further indicated that Defendant
31
Advance Opinions
rode the Honda ATV at Murch’s property
during the same time period, there was
also evidence that the Honda ATV had
been stolen from a home in San Juan
County, New Mexico. However, evidence
of the separate theft of the Honda ATV is
not probative of Defendant’s distinct acts
because the trial record does not clearly
indicate who took the Honda ATV to
Murch’s property and when it was taken
there. The jury could reasonably infer from
Spinnichia’s testimony that Defendant possessed the trailer, the snowmobile, and the
Polaris ATV prior to possessing the Honda
ATV, but Murch’s testimony suggested that
all four vehicles arrived on his property at
the same time. The jury was instructed to
return guilty verdicts if it found that Defendant possessed each vehicle and knew
or had reason to know that the vehicle was
stolen.3 It was not instructed to consider
whether Defendant possessed the vehicles
at separate times and locations. Moreover,
law enforcement officers testified that they
recovered all four vehicles from the same
location, specifically finding the Honda
ATV inside the enclosed trailer parked
on Murch’s property. Thus, based on the
indicia of time and space, we conclude
that the evidence fails to establish that
Defendant’s conduct was four distinct acts.
Consequently, we must resort to Swafford’s
remaining guiding principles.
{28} We believe that the objects and
results involved in this case are sufficient
indicators that Defendant’s possession of
each stolen vehicle constitutes four distinct
acts. In applying these indicia, we “may
inquire as to the interests protected by the
criminal statute, since the ultimate goal
is to determine whether the [L]egislature
intended multiple punishments.” Bernal,
2006-NMSC-050, ¶ 14. The objects possessed by Defendant are subject to broad
regulation by the State under a highly specific statutory scheme found in the Motor
Vehicle Code and the Criminal Code. With
limited exceptions, the Motor Vehicle
Code’s vehicle registration requirements
mandate that “every motor vehicle, manufactured home, trailer, semitrailer and pole
trailer when driven or moved upon a high-
way . . . is subject to the registration and
certificate of title provisions of the Motor
Vehicle Code[.]” NMSA 1978, § 66-3-1(A)
(2013). Off-highway motor vehicles, such
as snowmobiles and side-by-side ATVs,
are also subject to registration requirements under the Motor Vehicle Code’s
provisions, including the Off-Highway
Motor Vehicle Act (OHMVA), NMSA
1978, §§ 66-3-1001 to -1020 (1978, as
amended through 2009).4 Vehicle owners
who fail to comply with these registration
requirements may be subject to criminal
penalties. § 66-3-1(C); § 66-3-1020. Protection of personal property interests in
vehicles is one of the primary purposes of
this statutory design.
{29} The Motor Vehicle Code requires
owners to register their vehicles so they
may be uniquely identified and tracked
in a centralized system. Every owner of a
vehicle for which registration is required
must apply to the Motor Vehicle Division
(MVD) of the New Mexico Taxation and
Revenue Department “for the registration
and issuance of a certificate of title for
the vehicle[.]” NMSA 1978, § 66-3-4(A)
(2007). The application must include the
following detailed information:
[A] description of the vehicle
including, to the extent that the
following specified data may exist
with respect to a given vehicle,
the make, model, type of body,
number of cylinders, type of
fuel used, serial number of the
vehicle, odometer reading, engine
or other identification number
provided by the manufacturer of
the vehicle, whether new or used
and, if a vehicle not previously
registered, date of sale by the
manufacturer or dealer to the
person intending to operate the
vehicle[.]
Section 66-3-4(A)(2). If a vehicle has
never been registered in New Mexico
but was registered in another state, the
vehicle must be “examined and inspected
[by MVD personnel] for its identification
number or engine number[.]” Section
66-3-4(B). Additionally, a registration
application for a vehicle purchased from
a dealer in New Mexico or another state
“shall be accompanied by a manufacturer’s
certificate of origin duly assigned by the
dealer to the purchaser.” Section 66-34(C). Upon receipt of an application for
a vehicle that has never been registered,
the MVD is required to “first check the
engine or other standard identification
number provided by the manufacturer
of the vehicle shown in the application
against its own records [and] the records
of the national crime information center.”
NMSA 1978, § 66-3-8 (2004). The MVD
also “may refuse, suspend or revoke registration or issuance of a certificate of title
or a transfer of registration” if “the division
has a reasonable ground to believe that the
vehicle is a stolen or embezzled vehicle or
the granting of registration or the issuance
of a certificate of title would constitute a
fraud against the rightful owner or other
person having valid lien upon the vehicle[.]” NMSA 1978, § 66-3-7(D) (2004).
Accord § 66-3-1006(A) (providing that
MVD may refuse registration or issuance
of a certificate of title or any transfer of a
registration certificate for an off-highway
motor vehicle on same grounds). Evidence
of registration validated by MVD “shall be
exhibited upon demand of any police officer[,]” NMSA 1978, Section 66-3-13(A)
(2013), a certificate of title issued by MVD
is “prima facie evidence of the ownership
of the vehicle[,]” NMSA 1978, § 66-3-12
(1978), and owners must display registration plates and validating stickers on
their vehicles. NMSA 1978, § 66-3-14(A)
(1995). The Motor Vehicle Code also contains extensive statutory provisions that
delineate separate registration requirements that apply when an owner sells,
transfers, or assigns title to the owner’s
vehicle to another person. See NMSA 1978,
§§ 66-3-101 to -127 (1978, as amended
through 2013). We are persuaded by this
statutory language that the Legislature
intended to prevent and combat illicit trafficking in stolen vehicles by instituting a
vehicle registration system that maintains
a history of individual vehicle ownership,
requires distinct identifiers be assigned
3 UJI 14-1652. The jury was also instructed that “[a] person is in possession of [a vehicle] when, on the occasion in question, he
knows what it is, he knows it is on his person or in his presence and he exercises control over it.” UJI 14-130. This instruction also
provides that “[e]ven if the object is not in his physical presence, he is in possession if he knows what it is and where it is and he
exercises control over it.” Id.
4See § 66-3-1001.1(E) (defining an “off-highway motor vehicle”); see also § 66-3-1(A) (providing that “every off-highway motor
vehicle is subject to the registration and certificate of title provisions of the Motor Vehicle Code” unless certain exceptions apply); see
also § 66-3-1003 (“Unless exempted from the provisions of the [OHMVA], a person shall not operate an off-highway motor vehicle
unless the off-highway motor vehicle has been registered in accordance with Chapter 66, Article 3 NMSA 1978.”).
32
Advance Opinions
and affixed to vehicles, and monitors the
transfer of vehicles from other states and
between owners.
{30} Likewise, the Legislature crafted provisions of the Criminal Code that operate
in tandem with the Motor Vehicle Code
to punish criminal conduct that infringes
on personal property interests in vehicles.
See NMSA 1978, §§ 30-16D-1 to -3 (2009)
(prohibiting the unlawful taking of a vehicle or motor vehicle, embezzlement of a
vehicle or motor vehicle, and misappropriating a vehicle or motor vehicle by fraud);
see also NMSA 1978, §§ 30-16D-5 to -6
(2009) (prohibiting injuring or tampering
with a motor vehicle and unlawful altering
or changing of vehicle engine numbers).
The statute at issue in this case is part of that
statutory framework and protects interests
and achieves policy objectives that are different from the provisions criminalizing
the retention of generic property. Compare
§ 30-16D-4 with NMSA 1978, § 30-1611(C)(2) (2006) (prohibiting the retention
of “any property acquired by theft, larceny,
fraud, embezzlement, robbery or armed
robbery.”). The Legislature sought to address the harm inflicted on the public by a
particularized type of criminal enterprise:
vehicle theft. Because Section 30-16D-4
appears designed to protect the public from
the trafficking of stolen vehicles, it follows
that the Legislature intended to allow for
separate charges for each stolen vehicle
separately possessed by an individual. See
Boergadine, 2005-NMCA-028, ¶ 19 (“The
unit of prosecution may be based on the
nature of the thing taken.”).
{31} Analyzing Defendant’s case in light
of the clear interests protected by the
criminal statute, the indicia of “objects and
results” sufficiently separate Defendant’s
acts of possession. Defendant received
four convictions for possession of four
separate and distinct stolen vehicles: an
enclosed trailer, a snowmobile, a Polaris
side-by-side ATV, and a Honda side-byside ATV. The jury found that each vehicle
had been stolen or unlawfully taken and
Defendant knew or had reason to know
that the vehicles had been stolen. Under
these circumstances, the indicia of distinctness justify convicting Defendant of
four counts under Section 30-16D-4(A).
INEFFECTIVE ASSISTANCE OF
COUNSEL
{32} Finally, Defendant argues that his
trial counsel failed to meet the constitutional standards of effective assistance
under the Sixth Amendment of the United
States Constitution. Defendant makes
multiple ineffective assistance of counsel
claims, specifically that trial counsel (1)
failed to object to jury instructions that
omitted an essential element of the crime
of receiving or transferring stolen motor vehicles, (2) failed to articulate in his
motion for directed verdict that the State
failed to present any evidence that Defendant received the stolen vehicles with the
intent to procure or pass title, (3) failed
to subpoena crucial witnesses, (4) failed
to consult Defendant in the preparation
of his defense, and (5) failed to effectively confront the witnesses against him
through cross examination, including a
police officer who testified at trial about
his interview of Defendant.
{33} We review claims of ineffective assistance of counsel de novo. State v. Martinez,
2007-NMCA-160, ¶ 19, 143 N.M. 96, 173
P.3d 18. In order to make a prima facie
case of ineffective assistance of counsel,
Defendant must show “(1) that counsel’s
performance fell below that of a reasonably
competent attorney and (2) that [the d]
efendant was prejudiced by the deficient
performance.” Id. “A defendant must
demonstrate that counsel’s errors were so
serious that the result of the proceeding
would have been different.” State v. Gallegos, 2009-NMSC-017, ¶ 34, 146 N.M.
88, 206 P.3d 993.
{34} Defendant has failed to make a
prima facie case for ineffective assistance
of counsel. Defendant’s first two attacks on
trial counsel’s performance are rooted in
Defendant’s unpersuasive interpretation of
the statute codifying the crime of receiving
or transferring stolen vehicles. Defendant
argues that trial counsel was ineffective
because he failed at trial to object to the
jury instructions, which Defendant contends did not incorporate the essential
element of “intent to procure or pass title
to a vehicle” in the offense of possession
of a stolen vehicle under Section 30-16D4(A). Similarly, Defendant also claims that
trial counsel’s motion for directed verdict
was deficient due to his failure to argue
that the evidence was insufficient to show
that Defendant intended to procure or
pass title to the stolen vehicles. Because
we have expressly decided in this Opinion
that the offense of possession of a stolen
vehicle under Section 30-16D-4(A) does
not require the element of intent to procure or pass title to a vehicle, Defendant’s
claims of ineffective assistance of counsel
on these grounds fail.
{35} Defendant also makes several general allegations related to trial counsel’s
conduct, including the failure to subpoena
key witnesses, failure to effectively crossexamine witnesses, and failure to consult
Defendant in the preparation of his defense. These types of arguments call into
question matters of defense counsel’s trial
strategy and tactics, which “we will not
second guess” on appeal. State v. Ortega,
2014-NMSC-017, ¶ 56, 327 P.3d 1076 (internal quotation marks and citation omitted). “We do not find ineffective assistance
of counsel if there is a plausible, rational
trial strategy or tactic to explain counsel’s
conduct.” State v. Allen, 2014-NMCA-047,
¶ 17, 323 P.3d 925. In addition, despite the
strong presumption in favor of trial counsel’s competency, Defendant in his brief in
chief did not provide detailed explanations
or record citations to support his allegations that trial counsel’s performance was
deficient or prejudiced him. We decline to
review or consider Defendant’s ineffective
assistance of counsel arguments when they
are unsupported and purely speculative.
See id. ¶ 18 (declining to review an ineffective assistance of counsel claim where “the
necessary facts and arguments are not sufficiently developed [by defendant] for review
or proper consideration”); see also Headley
v. Morgan Mgmt. Corp., 2005-NMCA-045,
¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will
not review unclear arguments, or guess at
what [a party’s] arguments might be.”).
{36} Although we hold that Defendant
has failed to make a prima facie case of
ineffective assistance of counsel on direct
appeal, he is not precluded from pursuing
these issues in a collateral habeas corpus
proceeding. See State v. Crocco, 2014NMSC-016, ¶ 24, 327 P.3d 1068 (noting
that “[i]f facts beyond those in the record
on appeal could establish a legitimate
claim of ineffective assistance of counsel,
[a d]efendant may assert it in a habeas
corpus proceeding where an adequate
factual record can be developed for a court
to make a reasoned determination of the
issues”).
CONCLUSION
{37} For the foregoing reasons, we affirm Defendant’s four convictions for
possession of the stolen enclosed trailer,
the snowmobile, the Polaris ATV, and the
Honda ATV, contrary to Section 30-16D4(A).
{38} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
WE CONCUR:
CYNTHIA A. FRY, Judge
J. MILES HANISEE, Judge
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Experienced Legal Assistant
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Holt Mynatt Martínez, P.C., an AV-rated law
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Associate Attorney
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The McKinley County District Attorney’s
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Assistant District Attorney
The Fifth Judicial District Attorney’s office
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Holthus is an Equal Opportunity Employer
and E-Verify participant. *** All applicants
must apply through our website at, https://
workforcenow.adp.com/jobs/apply/posting.
html?client=mypremier ***
Office of the State Engineer/
Interstate Stream Commission
(OSE/ISC) State of New Mexico
The Litigation & Adjudication Program seeks
to hire a New Mexico licensed attorney: a
Lawyer Advanced to work in the Northern
New Mex ico Adjud icat ion Bureau to
represent the OSE/ISC in federal & state court
litigation & at administrative hearings, water
right adjudications and natural resources
issues. The positions are located in Santa
Fe. Qualifications: Juris Doctorate from an
accredited law school; 5 years experience
in the practice of law; member of the New
Mexico State Bar. Job ID #: Northern New
Mexico Attorney Advanced (OSE#64957)
#2015-05820. Must apply on line at http://
www.spo.state.nm.us/ from 12/16/2015
to 12/30/2015. The OSE/ISC is an Equal
Opportunity Employer
New Mexico Administrative
Hearings Office—
Chief Hearing Officer
The New Mexico Chief Hearing Officer
Selection Committee is currently soliciting
applications for the position of Chief
Hearing Officer (CHO). This is a full-time,
exempt position, appointed for a six-year
term beginning on or after 1/1/16. The
salary range is from $25.75 - $63.73 hourly,
$53,558 - $132,558 annually, depending
upon experience and qualifications. The
CHO manages the Administrative Hearings
Office (AHO), which holds hearings on
taxation matters pertinent to the Taxation
and Revenue Department. The CHO is
responsible for supervising 16 full time
employees in four offices across the state,
preparing an annual budget, conducting
hearings in the CHO’s capacity as a hearing
officer, managing the efficient processing of
a large AHO caseload and testifying before
the New Mexico State Legislature, as needed.
Minimum qualifications include: licensed
to practice law in New Mexico or another
state and knowledge of the tax law and
substantial experience making the record in
an administrative hearing suitable for judicial
review. Preferred skills include: at least three
years combined experience with tax law and
making the record in administrative hearings
suitable for judicial review, experience
with motor vehicle law, budgeting, general
business matters, legal case management
databases, and personnel management. To
apply, please submit: 1) letter of interest; 2)
résumé detailing applicant’s conformance
to the minimum qualifications and preferred
skills for this position as listed above; 3)
evidence of being a licensed attorney in New
Mexico or another state and evidence of
being in good standing in each state in which
licensed to practice law; and 4) names and
contact information for three professional
references, by December 29, 2015 to: CHO.
[email protected]. The detailed job
posting and additional information regarding
this position can be viewed at http://nmdfa.
state.nm.us/chief-hearing-officer-selectioncommittee.aspx.
Amazing Bilingual Advocate
Needed!
Immigration law firm seeks full time associate attorney with passion and commitment
to advocate for immigrants in all areas of
relief. Inclusive, supportive office culture
that welcomes all to apply. Position available
immediately. Must be fluent in Spanish. NM
License preferred. No experience necessary.
Salary DOE, full benefits offered. E-mail
letter of interest, resume, and writing sample
to Rebecca Kitson at [email protected]. We
will not contact you unless you are being
considered for the position and incomplete
applications will be immediately discarded.
Associate Attorney
Allen, Shepherd, Lewis & Syra, P.A. is seeking
an associate attorney with 0-5 years experience.
E x per ience i n worker's compensat ion,
construction defects, professional malpractice
or personal injury preferred but not required.
Must be licensed in New Mexico or obtain
New Mexico license. Candidates considered
for a position must have excellent oral and
written communication skills and demonstrate
a strong desire for trial work. Available
position is considered regular and full time.
We offer an excellent benefit package which
includes medical, dental, vision, 401(k), life
insurance, and long term disability benefits.
Please send resume, unofficial transcript and
writing sample to Human Resources, PO
Box 94750, Albuquerque, NM 87199-4750 or
[email protected]. All replies will be kept
confidential. EOE.
Positions Wanted
Are You Looking For a FT Legal
Assistant/Secretary?
7 years experience, Personal Injury or
Insurance Defense, Gen./Civil Litigation,
ON LY. P rofe s sion a l . Tr a n s c r ipt ion ,
Proofreading/Formatting, Organized, Attn.
to Detail, E-filing in Odyssey-CM/ECF,
Cust. Svc. Exp., Basic Pleadings, Discovery
Prep., Calendaring, File Maintenance,
MSWord, MS Outlook, Excel. Please contact
[email protected] for Resume,
Salary Expectations and References.
Office Space
620 Roma N.W.
Attorney With Current Case Load
Rosa les Law Group seek s a n at torney
with a current case load. If interested,
please send resume to: AndresRosales@
NewMexicoCounsel.com All resumes are kept
confidential.
Legal Assistant
Civil litigation firm in search of a selfm ot i v a t e d i nd i v idu a l i nt e r e s t e d i n
employment as a legal assistant. The right
individual must be skilled in using Microsoft
applications including Word, Excel, Outlook
a nd Exchange. Experience is a must.
Please email resumes to: AndresRosales@
NewMexicoCounsel.com All resumes are
kept confidential.
Services
Orthopedic Surgeon
Orthopedic Surgeon available for case review,
opinions, exams. Rates quoted per case. Send
inquiries to: [email protected]
Seeking Contract Work
Legal research, brief writing, file management.
Excellent skills. Resume, references and
writing samples available. Dmoore970@
comcast.net or (505) 699-9645.
38
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fa x, internet,
janitorial service, copy machine, etc. All of
this is included in the rent of $550 per month.
Up to three offices are available to choose from
and you’ll also have access to five conference
rooms, a large waiting area, access to full
library, receptionist to greet clients and take
calls. Call 243-3751 for appointment to inspect.
Office Space
One office space with secretarial space for
rent. Beautiful Uptown one-story building,
ample parking, near Louisiana and Menaul.
Rent includes shared use of receptionist and
four conference rooms. Rent also includes
utilities except phone and internet. $675
for each office space. Basement space is
also available for rent for files. Space will
be available January 1, 2016. Contact Cathy
Davis at 881-3191 or cathy@huntdavislaw.
com for more information.
For Lease in the Downtown Abq
Area - Historic Hudson House
One, Two, or Three attractive office spaces.
The downstairs has separate kitchen and
bathroom facilities. Rent includes utilities,
telephone equipment, access to fax, copier,
conference rooms, parking, library and
reference materials. There is a potential for
referrals and co-counsel opportunities. For
more information, call Debra at the offices
of Leonard DeLayo, Jr. PC at 505-243-3300.
Of Counsel Attorney
Furnished office available in existing law
firm. We are located near the Albuquerque
International Sunport. Benefits include:
Copier, Fax Line, Printer, Receptionist, Mail
Service, 1-800 Number, Conference Rooms,
Library, Reference Materials and co-counsel
opportunities. Please email AndresRosales@
NewMexicoCounsel.com All resumes are
kept confidential.
Corrales, NM Office Space
Sha re beaut if u l of f ice space w it h a n
experienced tria l law yer. Spectacu lar
mountain views serve as the backdrop for two
available offices. Rent includes receptionist,
furnishings, space for support staff, access
to conference room and ample parking.
For more information call Jim Ellis at (505)
266-0800.
Uptown Square Single Offices
Available
1-2 offices with secretarial space available. One
shared with other attorneys and one shared with
building owners. Both offices have reception,
conference room, kitchen or coffee bar. Full
service lease. Please call John Whisenant or Ron
Nelson for more information (505) 883-9662.
Santa Fe Professional Office
Located in the St Francis Professional
Center, share an office suite with two other
established attorneys. Large reception area,
conference room, kitchenette. Ample parking. Call Donna 982-1443.
Miscellaneous
Searching For Betty Beilman's Will!
She lived in Angel Fire and Albuquerque.
(580) 458-7828
When First Impressions Matter
Featuring:
• business cards
• envelopes
• stationery
• brochures
• presentation booklets
• invitations
Quality, full-color printing.
Local service with fast turnaround.
For more information, contact Marcia Ulibarri at
505-797-6058 or [email protected]
Ask about YOUR member discount!
DIGITAL PRINT CENTER
All we are saying, is
7500 providers
statewide network
3 free primary care visits
3 free behavioral care visits
low cost/no cost prescriptions
worldwide urgent/emergency care
Big benefits for large businesses. Big as in lots of
plan benefits. And big as in a huge network of more
than 7500 healthcare providers. But what’s not so
big is the cost. Ask your insurance broker or agent
to show you the benefits and costs
of New Mexico Health Connections
plans.Your business will thank you.
Call 505-322-2360 or visit myNMHC.org.
myNMHC.org
Simple, honest, affordable health insurance.
NMHC0353-0915

12/16 - State Bar

Transcription

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