3 to 5 - State Bar

Transcription

3 to 5 - State Bar

March 5, 2014 • Volume 53, No. 10
Inside This Issue
Table of Contents .................................................... 3
Notices ...................................................................... 4
Bridge to Justice Sign-up Form............................. 6
What Every Lawyer Should Know About
Electing Portability, by Vincent Haslam .............. 7
Lack of Funding Depriving New Mexico’s Poor
of Much-Needed Legal Aid, by John D. Robb....... 8
Molly Schmidt-Nowara Chosen for
Minzner Award, by D.D. Wolohan........................ 9
Clerk’s Certificates................................................. 15
From the New Mexico Supreme Court
2014-NMSC-003, No. 34,306:
Griego v. Oliver ................................................ 23
2014-NMSC-004, No. 33,704:
Albuquerque Cab Co. v. N.M. Public
Regulation Commission ................................. 37
Lagoon by Lynne Laier (see page 3)
The Gallery ABQ
Special Insert
YLD...In Brief
Live Seminar
CLE Planner
Navigating the Privileges Minefield
March 14
Friday, March 14, 2014
State Bar Center, Albuquerque
Standard fee: $189
Government, legal service attorneys,
and Paralegal Division members: $159
5.5 G
also available via
LIVE WEBCAST
at the standard fee
Co-sponsors: Law Practice Management Committee,
Business Law Section, Trial Practice Section
8:30 a.m.
Registration
9 a.m.
An Overview of the Attorney-Client Privilege and Work-Product Doctrine
Hon. Alan Torgerson, ret. U.S. Magistrate Judge
Edna Epstein, Law Offices of Edna Selan Epstein, Chicago
10:30 a.m. Break
10:45 a.m. Private Investigation & Insurance Adjuster Files: State Law Considerations
Joseph Romero, Joseph L. Romero Trial Lawyer LLC
11:45 a.m. Lunch (provided at the State Bar Center)
1 p.m.
Ex Parte Communications in the Regulatory Environment
Jeffrey H. Albright, Lewis Roca Rothgerber LLP
2 p.m.
Break
2:15 p.m.
Protecting and Piercing the Attorney-Client Privilege in a Business Setting
Speaker TBD
3:15 p.m.
Break
3:30 p.m.
Panel Discussion
4:30 p.m.
Adjourn
All live seminars are held at the State Bar Center, 5121 Masthead NE, Albuquerque.
They include continental breakfast, breaks, buffet lunch, course materials,
and CLE credit filing and fees for New Mexico.
For more information, contact the Center for Legal Education at 505-797-6020.
CENTER FOR LEGAL EDUCATION
www.nmbarcle.org
2
Bar Bulletin - March 5, 2014 - Volume 53, No. 10
Table of Contents
Officers, Board of Bar Commissioners
Erika Anderson, President
Martha Chicoski, President-Elect
J. Brent Moore, Vice President
Scotty A. Holloman, Secretary-Treasurer
Andrew J. Cloutier, Immediate Past President
Board of Editors
Ian Bezpalko, Chair Kristin J. Dalton
Jocelyn C. Drennan
Jennifer C. Esquibel
Bruce Herr
George C. Kraehe
Maureen S. Moore
Tiffany L. Sanchez
Mark Standridge
Joseph Patrick Turk
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • [email protected]
Communications Coordinator
Evann Kleinschmidt
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2014, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: [email protected]. • www.nmbar.org
March 5, 2014, Vol. 53, No. 10
Notices .................................................................................................................................................................4
Bridge to Justice Sign-up Form....................................................................................................................6
What Every Lawyer Should Know About Electing Portability, by Vincent Haslam ........................7
Lack of Funding Depriving New Mexico’s Poor of Much-Needed Legal Aid, by John D. Robb.....8
Molly Schmidt-Nowara Chosen for Minzner Award, by D.D. Wolohan..............................................9
Legal Education Calendar........................................................................................................................... 10
Writs of Certiorari .......................................................................................................................................... 12
List of Court of Appeals’ Opinions............................................................................................................ 14
Clerk’s Certificates.......................................................................................................................................... 15
Recent Rule-Making Activity...................................................................................................................... 20
Opinions
2014-NMSC-003, No. 34,306: Griego v. Oliver ........................................................................... 23
2014-NMSC-004, No. 33,704:
Albuquerque Cab Co. v. N.M. Public Regulation Commission ............................................. 37
Advertising....................................................................................................................................................... 40
Meetings
State Bar Workshops
March
March
5
Employment and Labor Law Section BOD,
Noon, State Bar Center
5
Divorce Options Workshop
6 p.m., State Bar Center
5
Committee on Diversity in the Legal
Profession, 4 p.m., State Bar Center
5
Foreclosure Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
6
Health Law Section BOD,
9 a.m., via teleconference
6
Landlord Tenant Workshop
5:30 p.m., State Bar Center
12
Children’s Law Section BOD,
Noon, Juvenile Justice Center
13
Elder Law Section BOD,
13
Public Law Section BOD,
Noon, Montgomery and Andrews, Santa Fe
13
Business Law Section BOD,
4 p.m., via teleconference
14
Animal Law Section BOD,
14
Prosecutors Section BOD,
11
Civil Legal Clinic for Veterans
9 a.m.–noon, Raymond G. Murphy VA
Medical Center, SCI Meeting Room,
Albuquerque
13
Civil Legal Clinic
3–6 p.m., Herman Sanchez Community
Center, Albuquerque
18
Legal Resources for the Elderly Workshop
10–11:15 a.m., Presentation
12:30–3:30 p.m., Clinics
Munson Senior Center, Las Cruces
19
Legal Resources for the Elderly Workshop
9 a.m.–noon, Clinics
12:30–1:15 p.m., Presentation
Alamo Senior Center, Alamogordo
Cover Artist: Lynne Laier is an artist and a retired member of the State Bar. She paints primarily in wax encaustic and
watercolor, and her work has been in both solo and group exhibitions, has won awards, and is represented in institutional
and private collections. Lair is represented locally by The Gallery ABQ (www.thegalleryabq.com).
Bar Bulletin - March 5, 2014 - Volume 53, No. 10 3
Notices
Professionalism Tip
Court News
13th Judicial District Court
With respect to opposing parties and their counsel:
Judicial Vacancy
A vacancy will exist in the 13th Judicial
District Court in Los Lunas upon the retirement of Hon. William A. Sanchez, effective
March 1. The vacancy will be in the Family
Court Division in Valencia County. Inquiries regarding the details or assignment of
this judicial vacancy should be directed to
the Chief Judge or the Administrator of the
Court. The Dean of the UNM School of Law,
designated by the N.M. Constitution to chair
the Nominating Committee, solicits applications for this position from lawyers who
meet the statutory qualifications in Article
VI, Section 14 of the N.M. Applications and
information related to qualifications for the
position may be found on the Judicial Selection website, http://lawschool.unm.edu/
judsel/application.php, or by calling Raylene
Weis, 505-277-4700. The deadline for applications is 5 p.m., March 10. Applicants
seeking information regarding election or
retention if appointed should contact the
Bureau of Elections in the Office of the
Secretary of State. The Judicial Nominating
Commission will meet on March 17 at the
Valencia County Courthouse, Los Lunas, to
evaluate the applicants for this position. The
Commission meeting is open to the public
and members of the public who want to be
heard about any of the candidates will have
an opportunity to voice their opinion.
State Bar News
Attorney Support Groups
• March 10, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, Room 1119 (The group
meets the second Monday of the month.)
• March 17, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
• April 7, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
•For more information, contact Bill
Stratvert, 505-242-6845.
Paralegal Division
Brown-Bag CLE Series
The Paralegal Division invites members
of the legal community to bring a lunch
and attend “What Legal Aid Can Provide
to Your Client” (1.0 G) presented by Rosemary Traub. The program will be held from
4
I will clearly identify, for other counsel or parties, all changes that I have
made in all documents.
noon–1 p.m., March 12, at the State Bar
Center (registration fee for attorneys–$16,
members of the Paralegal Division–$10,
non-members–$15). Registration begins at
the door at 11:45 a.m. For more information, contact Cheryl Passalaqua, 505-2470411, or Evonne Sanchez, 505-222-9352.
Webcast to three locations:
•Santa Fe: Montgomery & Andrews,
325 Paseo de Peralta, Santa Fe. Contact
Donna Ormerod, 505-986-2520.
• R oswell: Atwood, Malone, Turner &
Sabin, 400 N. Pennsylvania, Ste. 1100.
Contact Tomma Shumate, 575-622-6221.
•Farmington: Titus & Murphy, 2021 E.
20th Street. Contact Shannon Krens,
505-326-6503.
Public Law Section
Nominations for Public Lawyer
of the Year Award
The Public Law Section is currently accepting nominations for the Public Lawyer of
the Year Award, which will be presented May
1. Visit http://www.nmbar.org/AboutSBNM/
sections/PublicLaw/publiclawyerawards.
html to view previous recipients and award
criteria. Nominations are due no later than
5 p.m., March 7. Send nominations to Doug
Meiklejohn, New Mexico Environmental
Law Center, 1405 Luisa St., Ste 5, Santa Fe,
NM 87505-4074, or email dmeiklejohn@
nmelc.org. The selection committee will
consider all nominated candidates and may
nominate candidates on its own.
Volunteer Attorney Program
Volunteers Needed
The Volunteer Attorney Program is
seeking volunteer attorneys to participate
in legal fairs in a variety of areas including
family law, consumer law, public benefits,
wills and estates, unemployment, contracts,
landlord/tenant, immigration, and more. A
legal fair in Albuquerque will be held from
3–7 p.m., March 13, at the Herman Sanchez
Community Center, 1830 William St. SE.
A legal fair in Santa Fe will be held from
10 a.m.–2 p.m., March 29, at the Genoveva
Chavez Community Center, 3321 Rodeo
Rd. For more information, contact Jane
Zhi, [email protected] or 505-797-6040.
Young Lawyers Division
Veterans Clinics Volunteers Needed
The Young Lawyers Division and the
New Mexico Veterans Affairs Health Care
System are holding clinics for the Veterans
Civil Justice Legal Initiative from 9 a.m.–
noon, the second Tuesday of each month at
the VA hospital. Breakfast and orientation
for volunteers begin at 8:30 a.m. The next
clinic is March 11. No special training
or certification required. Volunteers can
give advice and counsel in their preferred
practice area(s). To volunteer, contact
Keya Koul, [email protected], or Greg
Gambill, [email protected].
2014 Summer Fellowships
The Young Lawyers Division is currently
accepting applications for its 2014 Summer
Fellowships. YLD is offering two fellowships
for the summer of 2014 to law students who
are interested in working in public interest
law or the government sector. The fellowship
awards are intended to provide the opportunity for law students to work for public
interest entities or in the government sector
in an unpaid position. The fellowship awards,
depending on the circumstances of the position, could be up to $3,000 for the summer.
To be eligible, applicants must be current
law students in good standing with their
school. Applications for the fellowship must
include: (1) a letter of interest that details the
student’s interest in public interest law or the
government sector; (2) a résumé; and (3) a
written offer of employment for an unpaid
legal position in public interest law or the
government sector for the summer of 2014.
Students are not eligible for the fellowship if
they are receiving class or school credit for
the position. Applications containing offers
of employment that are contingent upon the
successful completion of a background check
will not be considered unless verification of
the successful completion of the background
check is also provided. Submit applications
to Ben Sherman, YLD Summer Fellowship
Coordinator, Ben Sherman Law LLC, 800
Lomas Blvd. NW, Ste. 200, Albuquerque, NM
87102. Applications must be postmarked by
March 28. Direct questions to Ben Sherman,
[email protected].
www.nmbar.org
UNM
Law Library
Hours Through May 17
Building & Circulation
Monday–Thursday 8 a.m.–10 p.m.
Friday
8 a.m.–6 p.m.
Saturday
8 a.m.–5 p.m.
Sunday
Noon–8 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–SundayClosed
UNM Women’s Law Caucus
Professor Bergman Recipient of
2014 Justice Mary Walters Award
UNM School of Law Professor Barbara
Bergman is the 2014 recipient of the Justice
Mary Walters Award, presented annually
by the UNM Women’s Law Caucus. Attend
the award dinner at 6 p.m., March 14, at the
UNM Student Union Building, Ballroom B.
Each year, the Women’s Law Caucus chooses
an outstanding woman in the New Mexico
legal community to honor in the name of
former Justice Mary Walters, who was the
first woman appointed to the New Mexico
Supreme Court. Tickets are $50 individually or $350 for a table of eight. Purchase
tickets online, https://secure.touchnet.com/
C21597_ustores/web/product_detail.jsp?P
RODUCTID=809&SINGLESTORE=tr.ue.
Other Bars
Albuquerque Lawyers Club
Monthly Lunch Meeting
The Albuquerque Lawyers Club invites
members of the legal community to its
lunch meeting at noon, March 5, at Seasons Rotisserie & Grill. Matt Coyte is the
featured speaker and will present “New
Mexico’s Jails, a Solitary Experience.” The
meeting is free to members and $30 for
non-members. For more information,
contact Yasmin Dennig, ydennig@Sandia.
gov or 505-844-3558.
N.M. Defense Lawyers
Association
CLE Opportunity
The New Mexico Defense Lawyers Association will present “Same-Sex Marriage:
Implications for New Mexico Employers”
(1.0 G) from 12:30–1:30 p.m. on March 14
at Seasons Rotisserie & Grill. The seminar
by Lorena Olmos, Karen L. Kahn, and
Vanessa Kaczmarek of Modrall Sperling
will follow a luncheon at 11:45 a.m. For
more information and registration, visit
www.nmdla.org or call at 505-797-6021.
N.M. Criminal Defense
Lawyers Association
Second Annual Trial Skills College
New Mexico’s top criminal defense trial
lawyers will be faculty for the N.M. Criminal Defense Lawyers Association Second
Annual Trial Skills College on March
21–22. Lectures and demonstrations include voir dire, cross, opening, and direct
by attorneys including Barbara Bergman,
Peter Schoenburg, Molly Schmidt-Nowara,
Shannon Kennedy, Barry Porter, and Dick
Winterbottom; small groups; and videotaped practice with one-on-one critiques.
The program is limited to 32 slots for
criminal defense practitioners (features
an advanced track). For more information,
visit www.nmcdla.org.
Bench & Bar Directory
All members receive the annual
Bench & Bar Directory, with its attorney
listings; State Bar boards, sections, divisions,
and committees; local, state, tribal and federal
courts; district attorneys; public defenders;
and more. To purchase additional copies,
visit www.nmbar.org and select Attorney/
Members > Publications > Bar Directory.
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org/JLAP/JLAP.html
Address Changes
–2015
The 2014
y
ector
ar Dir
B
&
Bench
duction
Is in Pro
2014–2015
Bench & Bar Directory
Update Your Contact Information by March 26
To verify your current information:
Visit www.nmbar.org. Click on Find an Attorney and search by name.
To submit changes:
Online:Visit www.nmbar.org, click on Contact Us
Mail: Address Changes, PO Box 92860, Albuquerque, NM 87199-2860
Fax: 505-828-3765
Email: [email protected]
Publication is not guaranteed for information submitted after March 26.
All New Mexico attorneys must notify
both the Supreme Court and the State
Bar of changes in contact information.
Supreme Court
Email:attorneyinfochange
@nmcourts.gov
Fax: 505-827-4837
Mail:PO Box 848
Santa Fe, NM 87504-0848
State Bar
Email: [email protected]
Fax: 505-797-6019
Mail: PO Box 92860
Albuquerque, NM 87199
Online:www.nmbar.org
Bridge to Justice (BTJ)
Sign up with BTJ to increase your client base
and accumulate pro bono time.
The Bridge to Justice Referral Program receives over 10,000 calls annually requesting referrals to attorneys. The Referral Program assists in finding
attorneys for program participants. The participant is charged a $30 fee, which goes to support the program, and receives a 30-minute consultation
with a referral panel attorney.
The program matches attorneys with potential clients based on the legal issue identified. The program advises the potential client of the 30minute limit and allows the attorney 24 hours to decline any referral. BTJ will track the pro bono hours. To sign up, complete and fax this form to BTJ at
505-797-6074 or mail to the address below.
Name: _________________________________________________________________________________________ Bar No: ____________________________
Mailing Address: ____________________________________________________________________________________________________________________
City/State/ZIP:______________________________________________________________________________________________________________________
Phone:___________________________________ Fax:___________________________________ Email:_____________________________________________
Licenses in Other States:________________________________________________ Other Languages _________________________________________________
PRACTICE COUNTIES
❑ Bernalillo
❑ Catron
❑ Chaves
❑ Cibola
❑ Colfax
❑ Curry
❑ De Baca
❑ Dona Ana
❑ Eddy
❑ Grant
❑ Guadalupe
❑ Harding
❑ Hidalgo
❑ Lea
❑ Lincoln
❑ Los Alamos
❑ Luna
❑ McKinley
❑ Mora
❑ Otero
❑ Quay
❑ Rio Arriba
❑ Roosevelt
❑ San Juan
❑ San Miguel
❑ Sandoval
❑ Santa Fe
❑ Sierra
❑ Socorro
❑ Taos
❑ Torrance
❑ Union
❑ Valencia
❑ Pueblo Courts
❑ Navajo Courts
PRACTICE AREAS
ADMINISTRATION
❑ Adult SSI
❑ Child SSI
❑ SSD
❑ SS Post Administrative Appeal
❑ SS Retire/SS Cessation
❑ Medicare
❑ Medicaid
❑ IDT
❑ Unemployment Compensation
❑ Other Administration
CRIMINAL
❑ Children’s Court
❑ Criminal Expunge
❑ DWI/Traffic
❑ Federal
❑ State Felony
❑ State Misdemeanor
❑ Wrongful Arrest
❑ Assault/Battery
❑ Post Conviction
❑ Criminal Appeal
❑ Other Criminal
BUSINESS
❑ Contracts
❑ Corporations
❑ Securities
❑ Other Business
NATURAL RESOURCES
❑ Environmental
❑ Mineral Rights
❑ Other Natural
❑ Water
REAL ESTATE
❑ Title
❑ Landlord/Tenant
❑ Foreclosure
❑ Real Property
❑ Deed Draft/Review
❑ Home Purchase
❑ Home Sale
❑ Agriculture-Farm/Ranch
❑ Boundary/Easement
❑ Condemnation
❑ Covenants
❑ Eminent Domain
❑ Zoning
❑ Lease
❑ Other Real Property
CONSUMER
❑ Chapter 7
❑ Chapter 13
❑ Collections–Debtor
❑ Collections–Creditor
❑ Garnishments
❑ Predatory Lending
❑ Identify Theft
❑ Mobile Homes
❑ Repossession
❑ Fraud/Misrepresentation
❑ Auto Purchase
❑ Other Consumer
EMPLOYMENT
❑ Contracts/Benefits
❑ Discrimination/Harassment
❑ Employee Side
❑ Employer Side
❑ ERISA
❑ Wrongful Termination
CIVIL RIGHTS
❑ Discrimination/Harassment
❑ Special Education
❑ Public Schools
❑ Mental Health
❑ Elderly Exploitation
❑ Nursing Home Abuse
❑ Patient Rights
❑ Privacy
❑ Arrest-Excessive Force
❑ Other Civil
FAMILY
❑ Adoption
❑ Divorce
❑ Custody
❑ Separation
❑ Name Change
❑ Termination Parental Rights
❑ Paternity
❑ Child Abuse/Neglect
❑ Child Support
❑ Domestic Partners
❑ Domestic Violence
❑ Emancipation
❑ Grandparent Right
❑ Collaborative law
❑ Guardianship–Child
❑ Guardianship–Adult
❑ GAL–Child
❑ GAL–Adult
ESTATE PLANNING
❑ POA
❑ AHCD
❑ TODD
❑ Probate
❑ Wills
❑ Will/Contested
❑ Trusts
PERSONAL INJURY
❑ Auto Collision
❑ Dog Bite
❑ Medical Malpractice
❑ Dental Malpractice
❑ Attorney Malpractice
❑ Slip/Fall
❑ Workers’ Comp. State
❑ Workers’ Comp. Federal
❑ Products Liability
❑ Wrongful Death
Return the form by email to [email protected] or by fax to 505-797-6074, ATTN: Deborah Hern
Phone 505-797-6066 or 1-800-876-6227 • PO Box 92860, Albuquerque, NM 87199-2860
6
OTHER
❑ Computers
❑ Website Transactions
❑ Patents–Trademarks
❑ Copyrights
❑ Construction Law
❑ Business Taxes
❑ Personal Taxes
❑ Slander/Libel
❑ Animal Rights
❑ Health Law/HIPPA
❑ Immigration
❑ Gambling
❑ Mediation
❑ Tort Negligence
❑ Tort Damages
❑ Civil Appeal
❑ Auto Accident Defense
❑_____________
❑_____________
What Every Lawyer Should Know
About Electing Portability
By Vincent Haslam
In 2012, President Obama signed into law the American Taxpayer
Relief Act of 2012. For those unfamiliar with tax law, every person
has an estate and gift tax exclusion of $5.34 million. In the context
of estate taxes, this generally means that only individuals with a
net worth exceeding $5.34 million will be liable for estate taxes.
Among the intricacies of ATRA is a provision that allows a surviving spouse to elect to inherit his or her most recently deceased
spouse’s unused exclusion, or DSUE. This provision, known as
“portability,” offers great flexibility in the estate planning process,
as it allows spouses to effectively share one another’s unused exclusion. Before portability, the DSUE amount was wasted.
There is no consensus in the estate planning community about
portability. It has been both applauded as a game changer and
condemned as a fraud against the public. Regardless, one thing
is clear. Portability makes attorneys’ jobs more difficult and carries increased exposure to malpractice liability for unsuspecting
attorneys.
For example, assume a young widow hires an attorney to probate
her late husband’s estate and that attorney fails to perfect the portability election because her estate is well below the $5.34 million
estate tax exclusion. Let’s assume that later in life she amasses a
fortune (through inheritance, remarriage, successful business
venture, etc.) such that when she dies, her estate is above the estate
tax exclusion. When the beneficiaries of the young widow’s estate
realize that their inheritance could have been shielded against the
estate tax through a portability election, they may sue the attorney
for failure to properly elect the benefits of portability for the estate.
Portability Change
Prior Law
To understand the impact of portability, consider the following
example. Assume that Husband and Wife each have a $5 million
dollar estate and that Husband dies first, leaving his $5 million to
Wife. His estate pays no estate tax because of the marital deduction. However, now Wife has a $10 million estate but only a $5.34
million exclusion (she inherited Husband’s assets, but not his
DSUE amount—in effect, his DSUE amount was wasted). When
Wife ultimately dies, leaving her estate to Child, $4.66 million
($10 million estate less $5.34 million exclusion) of her estate
will be subject to estate taxes. Congress introduced portability
to change this result.
Current Law
Under the same facts, Husband’s personal representative may elect
to port his $5.34 million DSUE, thereby creating a $10.68 million
exclusion for Wife rather than a $5.34 million exclusion. When
Wife dies, up to $10.68 million of her estate will pass tax free. Thus,
if she left $10 million to Child as in the previous paragraph, there
would be no estate tax due because of the availability of both her
exclusion amount and Husband’s ported DSUE amount. However, if Wife later remarries and is again widowed, the DSUE of
Husband is lost and Wife must thereafter elect to port the DSUE
of her most recently deceased spouse. This example is not meant
to imply that only the uber-wealthy are affected by portability.
Rather, there are several factors to consider in advising personal
representatives whether to make an election.
Electing Portability
Portability is not automatic. If the surviving spouse wants to
elect portability, the personal representative of the decedent’s
estate must file a complete and accurate estate tax return on Form
706, United States Estate Tax Return, within nine months of the
decedent’s death, even if Form 706 is not otherwise required.
Failure to file a complete, accurate, and timely estate tax return
waives the portability election.
Deciding Whether To Elect Portability
In many cases it will be impossible to predict with certainty
whether a surviving spouse will benefit from a portability election.
That being said, there are some common situations in which a portability election may be advantageous: 1) if the surviving spouse
inherited a substantial amount from his or her deceased spouse, a
portability election may be appropriate; 2) if the surviving spouse
anticipates a substantial increase in his or her net worth (be it
through profitable investments, family inheritances, gifts, family
businesses, etc.), a portability election may be advantageous; 3)
if the surviving spouse anticipates marrying a new spouse and
that new spouse has a high net worth, a portability election may
be advisable (please note, however, that the benefits of portability
may be lost if the new spouse predeceases the surviving spouse);
and 4) if the surviving spouse is young and has a long life expectancy, a portability election may prove to be beneficial. If in
doubt, the personal representative should elect portability on the
decedent’s estate tax return.
Whether the benefits of a portability election outweigh its drawbacks depends on the particular case. The primary drawback to
electing portability is the cost of preparing Form 706. Depending on the complexity of the estate, this cost will undoubtedly
be thousands of dollars. However, the cost of preparing Form
706 may be negligible in comparison with the tax savings that
portability generates.
Conclusion
While Congress may have had noble intentions when it created
portability elections, it inadvertently made attorneys’ jobs more
difficult. Often times, a surviving spouse’s estate will be well
below the $5.34 million exclusion and attorneys may therefore
casually disregard the need for a portability election. However, if
the attorney fails to properly counsel the surviving spouse and/or
personal representative to make the portability election, trouble
may arise when future heirs see a big part of their would-be
inheritance going to the IRS.
Vincent Haslam is an associate at Beckley & Tann, P.A. in Albuquerque. He practices law primarily in the areas of estate planning,
taxation, business planning, and probate. After graduating from the
UNM School of Law, he attended the University of Washington,
where he received an LL.M. in Taxation.
Lack of Funding Depriving New Mexico’s
Poor of Much-Needed Legal Aid
As a longtime participant in legal aid, I believe that we need
urgently to address the current adverse legal plight of poor New
Mexicans caused by a New Mexico legal aid service crisis.
This corrective action can start now during the 2014 New Mexico
Legislature and the 2014 U.S. congressional sessions, and by
important steps of additional funding by others.
This crisis has also seriously impaired fundamental values of our
democracy. A recent review provided by New Mexico Legal Aid
shows that the funds available to New Mexico’s legal aid organizations from all sources, federal, state, and private combined, have
decreased 27.3 percent since 2009. In 2013, this resulted in an
estimated 10,000 New Mexicans either being turned away or being
deprived of needed more complete relief from legal aid services.
This is an extraordinary situation that requires extraordinary new
efforts. These huge problems are occurring during the very period
that the needs and number of the poor are escalating.
These legal aid shortfalls are especially a direct threat to the fundamental pillars of equal justice for all contained in both the U.S.
and the New Mexico constitutions, and permanently engraved on
the façade of the U.S. Supreme Court building in Washington, D.C.
The New Mexico judiciary which establishes justice in the courts,
is also suffering from financial reductions. The judiciary also deserves broad support for restoring legislative funds to 2009 levels.
Martin Luther King Jr. has said that, if any group is denied equal
rights, it diminishes the rights of all of us. Let us therefore together
take advantage of our respective opportunities and duties to help
the poor, and preserve long-standing basic values of equal justice
and compassion for all.
John D. Robb has been a member of the Rodey Law Firm since
1951. He attended Yale, the University of New Mexico, and the
University of Minnesota Law School. His interest in legal aid started
as an officer with the Albuquerque Legal Aid Society about 1955,
continuing into the present.
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This crisis needs, I believe, the restoring of legislative funding
to at least 2009 levels and obtaining a massive increase in New
Mexico state and local bar association-sponsored volunteer legal
aid pro bono services.
4
By John D. Robb
To make your space reservation,
please contact Marcia Ulibarri
8
Molly Schmidt-Nowara
Chosen for Minzner Award
Text and photos by D.D. Wolohan
Trial practice and criminal law attorney Molly SchmidtNowara was presented with the 2013 Justice Pamela B.
Minzner Outstanding Advocacy for Women Award on Feb. 20
by the Committee on Women and the Legal Profession. The
event was attended by 60 friends, well-wishers, and former
colleagues of Schmidt-Nowara, who was chosen by the committee for her dedication to advancing the interests of women.
Mark Baker and Sara Sanchez nominated Schmidt-Nowara
for successfully defending a female OB/GYN client before the
New Mexico Medical Board on allegations that the physician
engaged in gross negligence by performing a third-trimester
abortion, a lawful procedure. Joe Goldberg was co-counsel.
Louise Pocock, award recipient Molly Schmidt-Nowara,
Sara Sanchez and Michelle Hernandez
Committee on Women and the Legal Profession members attending the award presentation were, from left,
Past Co-chair Jeanne Hamrick, Liz Garcia, Patty Galindo, Jeff Albright, Co-chair Michelle Hernandez,
Schmidt-Nowara, Co-chair Louise Pocock, Jocelyn Castillo, Laura Fashing, and Ann Washburn.
Louise Pocock with the advocacy award
State Bar President Erika Anderson, Greg Gambill,
Michelle Hernandez, Rebecca Avitia
Legal Education
March
6–7
Juvenile Criminal Defense
10.0 G
Live Seminar
N.M. Criminal Defense Lawyers
Association
505-992-0050
www.nmcdla.org
7
29th Annual Bankruptcy Year
in Review
6.0 G, 1.0 EP
Live Seminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
4–5
Employment Agreements,
Parts 1–2
2.0 G
National Teleseminar
505-797-6020
www.nmbarcle.org
11
Planning with Special Needs Trusts
1.0 G
505-797-6020
www.nmbarcle.org
13
Diligence in Business Transactions
1.0 G
505-797-6020
www.nmbarcle.org
14
Navigating the Privileges Minefield
5.5 G
Live Seminar
505-797-6020
www.nmbarcle.org
18
Trials of the Century II with
Todd Winegar
5.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
10
18
The Cybersleuth’s Guide to the
Internet: Super Search-Engine
Strategies and Investigative
Research
6.0 G
Video Replay
505-797-6020
www.nmbarcle.org
18
Considering Ethics—A Mock
Meeting of the Ethics Advisory
Committee
2.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
18
Ethicspalooza: Ethically Managing
Your Practice
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
18
“Crowd-funding” in Business
Ventures: Raising Capital from the
Public
1.0 G
505-797-6020
www.nmbarcle.org
20
Employment Law Torts in the
Workplace
1.0 G
505-797-6020
www.nmbarcle.org
21–22 N.M. Criminal Defense Lawyers
Trial Skills College
10.0 G
Live Seminar
N.M. Criminal Defense Lawyers
Association
505-992-0050
www.nmcdla.org
25
24th Annual Appellate Practice
Institute
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
25
2013 YLD Seminar-Standing Out
in a Tough Economy: Ethically
Collaborating in the Recovery
5.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
25
Practical Tips and Advice from
Judge Alan Torgerson
1.5 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
25
The Fear Factor: How Good
Lawyers Get Into Bad Trouble
3.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
25
Designing and Drafting GRATS in
Estate Planning
1.0 G
505-797-6020
www.nmbarcle.org
28
Ethics of Multi-jurisdictional
Practice
1.0 EP
505-797-6020
www.nmbarcle.org
Legal Education
www.nmbar.org
April
1
2013 Business Law Institute:
Must Knows Across the Practice
Spectrum
5.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
1
2013 Family Law Institute Day 1
4.0 G, 2.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
1
Current Issues in Civil Procedure
2.0 G
Video Replay
505-797-6020
www.nmbarcle.org
1
Ethicspalooza: Ethically Managing
Your Practice
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
1Planning and Drafting Revocable
Trusts
1.0 G
505-797-6020
www.nmbarcle.org
8–9Review and Negotiating Franchise
Agreements, Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
15
2013 Real Property Institute
5.5 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
15
2013 Family Law Institute Day 2
6.0 G
Video Replay
505-797-6020
www.nmbarcle.org
15
Managing the Present and Planning
for the Future
A Look at Assisting Lawyers with
Capacity Challenges and Planning
for Succession
2.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
15
Ethicspalooza: Proper Trust
Accounting
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
15Creditor Interests in LLCs/
Partnerships
1.0 G
505-797-6020
www.nmbarcle.org
22–23Law of Religious Organizations,
Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
29
2013 Employment and Labor Law
Institute
5.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
29
Fluff is for Pillows, Not Legal
Writing
2.0 G
Video Replay
505-797-6020
www.nmbarcle.org
29
Ethicspalooza: Charging a
Reasonable Fee
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
29
Practical Tips and Advice from
Judge Alan Torgerson
1.5 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
29
Ethicspalooza: The Ethics of Social
Media Use
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
29Sale/Leaseback Transactions in
Real Estate
1.0 G
505-797-6020
www.nmbarcle.org
30Ethics, Technology and Small Firms
1.0 EP
505-797-6020
www.nmbarcle.org
11
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 Feb. 21, 2014
Petitions for Writ of Certiorari Filed and Pending:
No. 34,558
No. 34,556
No. 34,554
No. 34,552
No. 34,512
No. 34,550
No. 34,549
No. 34,548
No. 34,546
No. 34,545
No. 34,544
No. 34,543
No. 34,541
No. 34,473
No. 34,522
No. 34,542
No. 34,538
No. 34,535
No. 34,534
No. 34,532
No. 34,470
No. 34,530
No. 34,529
No. 34,525
No. 34,476
No. 34,465
No. 34,527
No. 34,451
No. 34,467
No. 34,501
No. 34,486
No. 34,321
No. 34,289
No. 34,277
No. 34,275
No. 34,303
No. 34,170
No. 34,095
No. 34,067
No. 33,868
No. 33,819
12
Date Petition Filed
State v. Ho
COA 32,482 02/20/14
Lujan v. General Motors
Acceptance Corp.
COA 32,631 02/20/14
Miller v. Bank of America COA 31,463 02/19/14
State v. Ramirez
COA 33,203 02/19/14
Guzman v. Bravo
12-501 02/19/14
Jernigan v. Romero
12-501 02/17/14
State v. Nichols
COA 30,783 02/14/14
State v. Davis
COA 28,219 02/13/14
N.M. Dept. Workforce Solutions v.
Garduno
COA 32,026 02/13/14
Ahlgrim v. Franco
12-501 02/11/14
State v. Gonzales
COA 32,169 02/11/14
State v. Mallielle
COA 32,959 02/10/14
Archuleta v.
THI of N.M., LLC
COA 31,950 02/10/14
Mandeville v.
Presbyterian Healthcare COA 32,999 02/10/14
Response filed 2/20/14
Hobson v. Hatch
12-501 02/07/14
Chase v. State
12-501 02/06/14
State v. Ellis
COA 33,102 02/05/14
Hynoski v. Atwood
COA 32,548 02/05/14
State v. Moseley
COA 31,480 02/05/14
State v. Garcia
COA 32,930 02/03/14
MacLennan v. Michel
COA 31,026 02/03/14
State v. Haynes
COA 32,951 01/29/14
State v. Koesters
COA 32,889 01/29/14
State v. Gibbs
COA 32,854 01/28/14
State v. Pfauntsch
COA 31,674 01/27/14
Villanueva v. State
12-501 01/23/14
Sosaya v. Steward
12-501 01/22/14
Curry v. Great Northwest
Insurance Co.
COA 31,990 01/21/14
Response filed 2/11/14
Bertola v. State
12-501 01/17/14
Snow v. Warren Power
COA 32,335 01/13/14
Montoya v. Janecka
12-501 01/02/14
Skidgel v. Hatch
12-501 09/12/13
Tafoya v. Stewart
12-501 08/23/13
State v. Ramirez
12-501 08/12/13
State v. Hernandez
COA 30,230 08/09/13
Gutierrez v. State
12-501 07/30/13
Holguin v. Nance
12-501 05/23/13
Ramirez v. State
12-501 05/15/13
Response ordered; filed 8/7/13
Gutierrez v. Williams
12-501 03/14/13
Burdex v. Bravo
12-501 11/28/12
Response ordered; filed 1/22/13
Chavez v. State
12-501 10/29/12
No. 33,867
No. 33,539
No. 33,630
Roche v. Janecka
12-501 09/28/12
Contreras v. State
12-501 07/12/12
Response ordered; due 10/24/12
Utley v. State
12-501 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. 33,837 State v. Trujillo
COA 30,563 11/02/12
No. 33,754 State v. Garcia
12-501 11/02/12
No. 33,877 State v. Alvarez
COA 31,987 12/06/12
No. 33,952 Melendez v. Salls Brothers COA 32,293 01/18/13
No. 33,930 State v. Rodriguez
COA 30,938 01/18/13
No. 34,076 State v. Martinez
COA 32,424 04/19/13
No. 34,124 State v. Cortina
COA 30,317 05/24/13
No. 34,122 State v. Steven B. consol.
w/ State v. Begaye COA 31,265/32,136 07/12/13
No. 34,204 Faber v. King
COA 31,446 07/12/13
No. 34,138 Jones v. Franco
12-501 08/30/13
No. 33,994 Gonzales v. Williams
COA 32,274 08/30/13
No. 33,863 Murillo v. State
12-501 08/30/13
No. 33,810 Gonzales v. Marcantel
12-501 08/30/13
No. 34,271 State v. Silvas
COA 30,917 09/20/13
No. 34,300 Behrens v. Gateway
COA 31,439 09/27/13
No. 34,286 Yedidag v.
Roswell Clinic Corp.
COA 31,653 09/27/13
No. 34,349 Harrison v. Lovelace
Health System, Inc.
COA 32,215 10/18/13
No. 34,311 State v. Favela
COA 32,044 10/18/13
No. 34,295 Dominguez v. State
12-501 10/18/13
No. 34,380 Cohen v.
Continental Casualty Co. COA 32,391 11/15/13
No. 34,365 Potter v. Pierce
COA 31,595 11/15/13
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. 34,398 State v. Garcia
COA 31,429 12/04/13
No. 34,387 Perea v. City of
Albuquerque
COA 31,605/32,050 12/04/13
No. 34,400 State v. Armijo
COA 32,139 12/20/13
No. 34,455 City of Santa Fe v.
Tomada
COA 32,407 01/10/14
No. 34,435 State v. Strauch
COA 32,425 01/10/14
No. 34,499 Perez v. N.M. Workforce
Solutions Dept. COA 32,321/32,330 02/07/14
No. 34,498 Hightower v. State
12-501 02/07/14
No. 34,488 State v. Norberto
COA 32,353 02/07/14
No. 34,487 State v. Charlie
COA 32,504 02/07/14
No. 34,447 Loya v. Gutierrez
COA 32,405 02/07/14
No. 34,443 Aragon v. State
12-501 02/14/14
No. 34,516 State v. Sanchez
COA 32,994 02/14/14
Writs of Certiorari
Certiorari Granted and Submitted to the Court:
No. 34,007
(Submission Date = date of oral
argument or briefs-only
submission) Submission Date
No. 32,860 State v. Stevens
COA 29,357 01/10/12
No. 33,296 State v. Gutierrez
COA 29,997 09/12/12
No. 33,014 State v. Crane
COA 29,470 11/13/12
No. 33,324 State v. Evans
COA 31,331 11/26/12
No. 33,483 State v. Consaul
COA 29,559 12/17/12
No. 33,382 N.M. Human Services v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,383 Presbyterian Health Plan v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,384 Cimarron Health Plan v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,611 Bank of America v.
Quintana
COA 30,354 03/12/13
No. 33,594 Fallick v. Montoya
COA 30,172 03/13/13
No. 33,589 Zhao v. Montoya
COA 30,172 03/13/13
No. 33,632 First Baptist Church of Roswell v.
Yates Petroleum
COA 30,359 03/13/13
No. 33,548 State v. Marquez
COA 30,565 04/15/13
No. 33,567 State v. Leticia T.
COA 30,664 04/30/13
No. 33,566 State v. Leticia T.
COA 30,664 04/30/13
No. 33,592 State v. Montoya
COA 30,470 05/15/13
No. 33,565 State v. Ballard
COA 30,187 05/30/13
No. 33,226 State v. Olsson
COA 29,713 05/30/13
No. 33,971 State v. Newman
COA 31,333 07/24/13
No. 33,808 State v. Nanco
COA 30,788 08/14/13
No. 33,862 State v. Gerardo P.
COA 31,250 08/14/13
No. 33,993 Fowler v. Vista Care and
American Home Ins. Co. COA 31,438 08/14/13
No. 33,896 Rodriguez v. Del Sol
Shopping Center COA 30,421/30,578 08/26/13
No. 33,949 Rodriguez v. Del Sol
Shopping Center COA 30,421/30,578 08/26/13
No. 33,770 Vaughn v.
St. Vincent Hospital
COA 30,395 08/26/13
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing
COA 30,196 08/28/13
No. 33,938 State v. Crocco
COA 31,498 08/28/13
No. 33,898 Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088 09/11/13
No. 34,039
No. 33,884
No. 34,083
No. 33,847
No. 34,013
No. 33,970
No. 34,085
No. 34,146
No. 34,126
No. 34,128
No. 33,604
No. 34,009
No. 33,870
No. 33,796
No. 34,093
No. 34,232
No. 34,194
No. 33,999
No. 33,997
No. 34,044
No. 34,150
No. 34,074
No. 34,287
No. 34,120
No. 34,235
City of Albuquerque v.
AFSCME Local 3022
COA 31,075
Cavu Co. v. Martinez
COA 32,021
Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502
Amethyst v. Terhune
COA 31,165
State v. Urquizo
COA 30,337
Foy v. Austin Capital
COA 31,421
State v. Parvilus
COA 30,379
Badilla v. Walmart
COA 31,162
Madrid v.
Brinker Restaurant
COA 31,244
State v. Maurice H.
COA 31,597
Benavides v.
Eastern N.M. Medical
COA 32,450
State v. Ramirez
COA 30,205
State v. Huettl
COA 31,141
State v. Perez
COA 31,678
State v. Vasquez
COA 29,868
Cordova v. Cline
COA 30,546
Hinkle v. State Farm
COA 31,707
King v. Faber
COA 34,116
State v. Antonio T.
COA 30,827
State v. Antonio T.
COA 30,827
State v. Riordan
COA 31,795
Kimbrell v.
Kimbrell
COA 30,447/31,491
State v. Maples
COA 30,507
Hamaatsa v.
Pueblo of San Felipe
COA 31,297
State v. Baca
COA 31,442
State v. Alverson
COA 32,046
09/24/13
09/30/13
10/28/13
10/28/13
10/30/13
11/14/13
11/25/13
12/04/13
12/09/13
12/16/13
12/18/13
01/14/14
01/14/14
01/15/14
01/15/14
01/15/14
02/24/14
02/24/14
02/26/14
02/26/14
02/26/14
03/24/14
03/24/14
03/26/14
03/26/14
04/28/14
Petition for Writ of Certiorari Denied:
No. 34,165
No. 34,524
No. 34,521
No. 34,520
No. 34,518
Conley v. Janecka
State v. Marquez
State v. Zamora
Brian v. Eastburg
State v. Lopez
Date Order Filed
12-501 02/20/14
COA 32,385 02/19/14
COA 32,935 02/17/14
COA 33,040 02/17/14
COA 32,908 02/17/14
13
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Wendy F. Jones, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925
Effective Feb. 21, 2014
Published Opinions
No. 31975 9th Jud Dist Curry CR-10-876, STATE v J DOMINGUEZ (affirm in part, reverse in part and remand) 02/17/2014
No. 32546 9th Jud Dist Curry CR-10-876, STATE v J DOMINGUEZ (affirm in part, reverse in part and remand) 02/17/2014
No. 32815 WCA-10-3622, V ESCKELSON v MINERS COLFAX (affirm)
02/18/2014
Unublished Opinions
No. 32975 8th Jud Dist Taos CV-09-186, CV-12-118, M ROMERO v L HONE (dismiss)
02/17/2014
No. 33227 4th Jud Dist San Miguel CV-11-139, MESA GRANDE v SAN MIGUEL COUNTY (affirm)
02/17/2014
No. 31663 12th Jud Dist Otero CR-10-184, STATE v M FIRSCHING (affirm)
02/17/2014
No. 31728 11th Jud Dist McKinley CV-06-141, D NEZ v GALLUP MCKINLEY (affirm)
02/17/2014
No. 31980 5th Jud Dist Eddy CR-10-262, STATE v R PEREZ (affirm)
02/17/2014
No. 33011 2nd Jud Dist Bernalillo LR-09-55, STATE v S LUCERO (affirm)
02/18/2014
No. 33107 WCA-93-7529, S WOLHANDLER v TAOS SKI VALLEY (affirm)
02/18/2014
No. 32025 2nd Jud Dist Bernalillo CR-09-2696, STATE v R ARREOLA (affirm in part and remand)
02/20/2014
No. 31843 8th Jud Dist Union CR-11-34, STATE v N NATHAN (affirm)
02/20/2014
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
14
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Dated Feb. 10, 2014
Clerk’s Certificate
of Address and/or
Telephone Changes
Jane E. Abrams
6783 Via Campestre
Las Cruces, NM 88007
575-571-5400
theflying [email protected]
Michael J. Anaya
The Castle Law Group, LLC
20 First Plaza NW, Suite 602
505-848-9500
505-848-9516 (fax)
[email protected]
Fantina M. Becker
PO Box 3894
Albuquerque, NM
87190-3894
[email protected]
Rebecca Anne Burbridge
3829 Simms Avenue SE
[email protected]
R. Daniel Castille
Los Alamos National Bank
PO Box 60
1200 Trinity Drive
Los Alamos, NM 87544-0060
505-662-1001
505-662-1097 (fax)
[email protected]
James W. Catron Jr.
595 State Highway 32
Marietta, OK 73448-5569
James.catron.us@member.
mensa.org
Sidney P. Childress
PO Box 2327
Santa Fe, NM 87504-2327
505-433-9823
[email protected]
Jessica Beth Cooper
N.M. State Personnel Office
2600 Cerrillos Road
Santa Fe, NM 87505
505-476-7813
505-476-7727 (fax)
[email protected]
Joen Elizabeth Copeland
Arora Legal, PLLC
1441 E. McDowell Road,
Suite A
Phoenix, AZ 85006
623-313-1323
888-413-4183 (fax)
[email protected]
Marina Cordova
Developmental Disabilities
Planning Council
Office of Guardianship
625 Silver Avenue SW,
Suite 100
505-841-4586
505-841-4590 (fax)
MarinaA.Cordova@state.
nm.us
Jennifer M. deGraauw
Terry & deGraauw, PC
1303 Rio Grande Blvd. NW,
Suite 6
505-206-5044
505-206-5048 (fax)
[email protected]
Mary Dickman
U.S. Department of the Interior
Office of Hearings and Appeals
PO Box 26147
1011 Indian School Road NW,
Room 322 (87104)
Albuquerque, NM
87125-6147
505-563-5330
505-563-5341 (fax)
[email protected]
Allison Bailey Dierlam
508 Cypress Road
Bellingham, WA 98225
409-893-1314
[email protected]
Paul Michael Dominguez
Marble Law
601 Marble NW
505-999-1080
505-217-3100 (fax)
pdominguez@marblelawnm.
com
Kyle J. Elliott
4651 N. Greenview Avenue,
#412
Chicago, IL 60640
847-688-3805
[email protected]
Jose Jehuda Garcia
4801 Lang Avenue NE,
Suite 110
505-933-5725
505-672-7079 (fax)
[email protected]
Monnica Garcia
Law Office of Monnica
L. Garcia, LLC
1110 Second Street NW
505-242-3919
505-792-2268 (fax)
[email protected]
Hubert M. Gray
Office of the District Attorney
520 Lomas Blvd. NW
Albuquerque, NM
87102-2118
505-222-1145
505-241-1145 (fax)
[email protected]
Harry G.W. Griffith Jr.
33903 Cripple Creek Drive
Pinehurst, TX 77362
832-845-4609
[email protected]
Elena Moreno Hansen
1240 Augustine
575-647-8802
[email protected]
Dulcinea Z. Hanuschak
Brownstein Hyatt Farber
Schreck, LLP
410 17th Street, Suite 2200
Denver, CO 80202
303-223-1184
303-223-1111 (fax)
[email protected]
15
Dated Feb. 11, 2014
of Address and/or
Telephone Changes
Matthew Allen Hartford
Davis Graham & Stubbs LLP
1550 17th Street, Suite 500
Denver, CO 80202
303-892-7212
303-893-1379 (fax)
[email protected]
Charlotte H. Hetherington
Cuddy & McCarthy, LLP
PO Box 4160
1701 Old Pecos Trail (87505)
Santa Fe, NM 87502-4160
505-988-4476
505-954-7373 (fax)
chetherington@
cuddymccarthy.com
Debra A. Hill
La Cerra Sueno, LLC
2739 E. Nisbet
Phoenix, AZ 85032
602-908-1940
[email protected]
Francisco Juan Jimenez
Office of the City Attorney
PO Box 2248
One Civic Plaza NW,
Room 4072 (87102)
Albuquerque, NM
87103-2248
505-768-4500
505-768-4525 (fax)
[email protected]
Dated Feb. 14, 2014
of Address and/or
Telephone Changes
Holly Agajanian
Miller Stratvert, PA
PO Box 1986
200 W. DeVargas Street,
Suite 9 (87501)
Santa Fe, NM 87504-1986
505-989-9614
505-989-9857 (fax)
[email protected]
16
http://nmsupremecourt.nmcourts.gov.
David R. Jojola
Frazer, Ryan, Goldberg &
Arnold, LLP
3101 N. Central Avenue,
Suite 1600
Phoenix, AZ 85012
602-200-7399
602-277-2595 (fax)
[email protected]
Paul N. Jones
7301 Fair Valley Way
Plano, TX 75024
505-235-2800
[email protected]
Edwin E. Macy
26 Camino A Las Estrellas
Placitas, NM 87043
505-867-5670
[email protected]
Patrick Lee McDaniel
McDaniel Law Firm
PO Box 22381
Santa Fe, NM 87502-2381
505-350-0135
[email protected]
James E. Nelson
2220 Gilia Drive
Austin, TX 78733
[email protected]
Geary W. Pyles
U.S. Department of Energy
912 Ridgecrest Drive SE
[email protected]
Carol Anne Smith Rising
712 Trujillo Lane
Corrales, NM 87048-6106
505-690-4913
[email protected]
Susanne Darling Roubidoux
N.M. Department of Finance
and Administration
407 Galisteo Street, Suite 180
Santa Fe, NM 87501
505-827-6772
505-827-4984 (fax)
Susanne.Roubidoux@state.
nm.us
Tiffany Mercado
N.M. Legal Aid
PO Box 25486
Albuquerque, NM
87125-5486
505-768-6155
505-764-8206 (fax)
[email protected]
M. Victoria Amada
N.M. Public Education
Department
300 Don Gaspar Avenue
Santa Fe, NM 87501-2744
505-827-6389
505-827-6681 (fax)
[email protected]
James M. Davis Jr.
ExL Petroleum, LP
6 Desta Drive
Midland, TX 79705
432-686-8080
432-686-8087 (fax)
[email protected]
Charles de Saillan
N.M. Interstate Stream
Commission
PO Box 25102
407 Galisteo Street,
Room 101 (87501)
Santa Fe, NM 87504-5102
505-476-0512
505-827-5776 (fax)
[email protected]
Joshua Alan Ehrenfeld
Burr & Forman, LLP
3102 West End Avenue,
Suite 700
Nashville, TN 37203-1397
615-724-3200
615-724-3290 (fax)
[email protected]
Michael M. Rueckhaus
Michael M. Rueckhaus, PC
620 Roma Avenue NW
Albuquerque, NM
87102-2074
505-243-1739
505-243-2784 (fax)
[email protected]
Sam P. Ruyle
1520 Paseo de Peralta
Santa Fe, NM 87501
[email protected]
David E. Shelle
Caruso Law Offices
4302 Carlisle Blvd. NE
505-883-5000
505-883-5012 (fax)
[email protected]
Jeffrey Twersky
Kadish Twersky Law Firm
2920 Colby Avenue, Suite 102
Everett, WA 98201
425-259-1841
425-259-4863 (fax)
[email protected]
Darlene Teryssa Gomez
1412 Lomas Blvd. NW
505-842-0392
505-842-0686 (fax)
[email protected]
William Griffin
PO Box 643
2701 B Sudderth Drive (88345)
Ruidoso, NM 88355-0643
575-257-5426
888-875-6779 (fax)
[email protected]
Ann M. Harvey
2315 Camino Rancho Siringo
Santa Fe, NM 87505
505-820-7232
[email protected]
Billy J. Jimenez
N.M. Environment
Department
PO Box 5469
1190 St. Francis Drive (87505)
Santa Fe, NM 87502-5469
505-827-1047
505-827-1628 (fax)
[email protected]
Atrelle Jones
1028 E. Purcell Court
Pueblo West, CO 81007
303-550-4972
[email protected]
Peter Romney Jones
Prairie Island Indian
Community
5636 Sturgeon Lake Road
Welch, MN 55089
651-385-4137
[email protected]
Angela Nerissa Lytton
PO Box 9473
Fountain Valley, CA
92728-9473
[email protected]
Charles C. McLeod Jr.
1095 Greenway Road
Oceanside, CA 92057
505-264-3630
[email protected].
mil
Nicole W. Moss
The Law Office of Nicole
W. Moss, LLC
620 Roma Avenue NW
505-433-5705
505-246-2668 (fax)
[email protected]
Luis Brijido Juarez
1822 Lomas Blvd. NW
505-429-4177
505-345-3952 (fax)
Joy Elaine Pendleton
Fredlund & Bryan,
Attorneys at Law, LLC
616 E. Bender Blvd.
Hobbs, NM 88240
575-393-5400
575-393-3300 (fax)
Robert Koeblitz
Bleus & Associates
2633 Dakota NE
505-884-9300
505-884-9305 (fax)
[email protected]
Patricia A. Prekup
The Ledbetter Firm, PLC
1003 North Main Street
Cottonwood, AZ 86326
928-649-8777
928-649-8778 (fax)
[email protected]
Daniela Labinoti
Law Firm of Daniela
Labinoti, PC
501 N. Kansas Street, Suite 102
El Paso, TX 79901
915-581-4600
915-581-4605 (fax)
Dated Feb. 19, 2014
of Address and/or
Telephone Changes
Xavier Edward Acosta
Law Offices of
Xavier Edward Acosta
PO Box 16152
Las Cruces, NM 88004-6152
575-528-8225
[email protected]
Lillian L. Alves
Blue Ocean Enterprises, Inc.
401 West Mountain Avenue
Fort Collins, CO 80521
970-419-7420
lillian.alves@blueocean-inc.
com
Mark Pustay
N.M. Department of Game
and Fish
PO Box 25112
One Wildlife Way (87507)
Santa Fe, NM 87504-5112
505-476-8148
505-476-8123 (fax)
[email protected]
Junilla Sledziewski
Statman, Harris & Eyrich, LLC
200 West Madison Street,
Suite 3820
Chicago, IL 60606
312-251-9964
312-263-1201 (fax)
jsledziewski@statmanharris.
com
Carlos M. Quinonez
Quinonez & Salayandia
Law Firm, LLC
11890 Vista Del Sol Avenue,
Suite A-115
El Paso, TX 79936
915-533-0009
888-301-1116 (fax)
[email protected]
Denise A. Snyder
McCarthy Holthus, LLP
6501 Eagle Rock NE, Suite A-3
877-369-6122 Ext. 2481
dsnyder@McCarthyHolthus.
com
Nicholas J. Rimmer
Whitener Law Firm, PA
4110 Cutler Avenue NE
505-242-3333
505-242-3322 (fax)
[email protected]
Jason J. Rudd
101 S. Capitol Blvd., Suite 1600
Boise, ID 83702
Rebecca M. Salwin
Office of the Public Defender
505 Marquette Avenue NW,
Suite 120
Albuquerque, NM
87102-2159
505-841-5000
505-841-5006 (fax)
[email protected]
Jennifer M. Anderson
Brownstein Hyatt Farber
Schreck, LLP
410 Seventeenth Street,
Suite 2200
Denver, CO 80202
303-223-1183
303-223-0983 (fax)
[email protected]
Rosemary Strunk
ProtoCall Services, Inc.
621 SW 6th Avenue, Suite 400
Portland, OR 97205
503-265-6701
[email protected]
D’Ontae D. Sylvertooth
U.S. Navy Bureau of
Medicine & Surgery
5113 Leesburg Pike,
4 Skyline Pl., Suite 602
Falls Church, VA 22041
703-681-2513
703-681-2597 (fax)
Dontae.Sylvertooth@med.
navy.mil
Matthew J. Zamora
Carter & Valle Law Firm
8012 Pennsylvania Circle NE
505-888-4357
505-883-5613 (fax)
[email protected]
Rebecca Loubriel Avitia
National Hispanic Cultural
Center
1701 Fourth Street SW
505-246-2261
505-724-4760 (fax)
[email protected]
Salena Karam Ayoub
5900 Luckett Court
El Paso, TX 79932
915-581-2100
[email protected]
17
David K. Bell
01509 SW Carey Lane
Portland, OR 97219
503-789-2121
[email protected]
Merit Bennett
The Bennett Law Group, LLC
460 St. Michael’s Drive,
Suite 703
Santa Fe, NM 87505
505-983-9834
505-983-9836 (fax)
[email protected]
Caroline Wade Blankenship
Blankenship Health Law, LLC
12218 Highway North 14,
No. 1026
Cedar Crest, NM 87008
505-681-0661
[email protected]
Charles J. Brideau
2738 Oyster Bay Drive
Frisco, TX 75034-1064
David K. Brooks
Dugan & Associates, PC
900 Main Avenue, Suite A
Durango, CO 81301
970-259-1770
970-259-1882 (fax)
[email protected]
Linda Burson
3730 W. Rock Creek Road,
Apt. 713
Norman, OK 73072-4823
[email protected]
Gregory Ara Chakalian
Office of the Seventh Judicial
District Attorney
PO Box 1099
302 Park Street
Socorro, NM 87801-1099
575-835-0052
575-835-0054 (fax)
[email protected]
David Mario Chavez
No. 110 Road 3000
Aztec, NM 87410
505-215-2674
Matt Cantou Clarke
Cantou Clarke Law, LLC
1322 Paseo de Peralta
Santa Fe, NM 87501
505-672-8018
505-214-5953 (fax)
[email protected]
18
Kathleen Conrey Desjacques
6 Avenue Sisley
Suresnes
France
33146259226
[email protected]
Christopher T. Elmore
215 Gold Avenue SW, Suite 102
Rory Allen Foutz
Bowlin Law Firm, LLC
6565 Americas Parkway NE,
Suite 200
575-415-4529
806-221-2412 (fax)
[email protected]
Ellen F. Gallegos
9655 Redmont Road NE
Justin D. Goodman
Law Offices of O’Brien and
Padilla, PC
6000 Indian School Road NE,
Suite 200
505-883-8181
505-883-3232 (fax)
jgoodman@obrienlawoffice.
com
Cheryl D. Hamer
Pomerantz LLP
11440 West Bernardo Court,
Suite 300
San Diego, CA 92127
858-753-1721
858-753-1722 (fax)
[email protected]
R. Randall Harrison
Ladenburg Law PLLC
705 S. 9th Street, Suite 305
Tacoma, WA 98405
253-732-9866
253-295-2326 (fax)
[email protected]
Michael R. Heitz
N.M. Department of
Transportation
490 Old Santa Fe Trail,
Suite 400
Santa Fe, NM 87501-2704
505-476-2220
505-476-2226 (fax)
[email protected]
Evan Spain Hobbs
First American Bank
4301 The 25 Way NE
505-798-9952
505-341-9305 (fax)
[email protected]
Karen Anslinger Holmes
613 La Bajada
Los Alamos, NM 87544
Patricia J. Jones
PO Box 23201
Ft. Lauderdale, FL 33307-3201
954-448-5300
[email protected]
Talia Kosh
The Bennett Law Group, LLC
460 St. Michael’s Drive,
Suite 703
Santa Fe, NM 87505
505-983-9834
505-983-9836 (fax)
[email protected]
William M. Kinsella Jr.
Law Office of
Jill V. Johnson Vigil
PO Box 16244
Las Cruces, NM 88004-6244
575-527-5405
575-527-1899 (fax)
[email protected]
Kim Knowles
Prairie Rivers Network
1902 Fox Drive, Suite G
Champaign, IL 61820
217-344-2371 Ext. 209
[email protected]
Steven Lehrbass
Landrith, Lehrbass, Suazo &
Goos, LLP
4701 West 43rd Street
Houston, TX 77092
210-262-7117
[email protected]
Anthony Lopez
705 Paseo del Pueblo Sur
Taos, NM 87571
575-758-0145
575-758-7400 (fax)
[email protected]
Richard L. Lougee
PO Box 43505
1905 E. 4th Street (85719)
Tucson, AZ 85733-3505
520-882-0602
[email protected]
Ameryn Maestas
505-236-9100
[email protected]
Hajra Imtiaz Malik
U.S. District Court District of New Mexico
PO Box 669
421 Gold Avenue SW,
5th Floor (87102)
Albuquerque, NM
87103-0669
505-348-2243
505-348-2246 (fax)
[email protected]
Pavel Marinov
22W212 Juniper Drive
Medinah, IL 60157
224-730-0980
[email protected]
Marian Matthews
6504 Antares Road NE
505-822-1065
[email protected]
Adam D. Melton
Langley Weinstein, LLP
76 E. Mitchell Drive
Phoenix, AZ 85012
602-428-7338
602-795-6077 (fax)
[email protected]
Mekko Mangas Miller
Route 42, Box 55-T
Santa Fe, NM 87506
505-577-6327
[email protected]
Timothy Nuccio
5070 Chato Court
[email protected]
Dahlia Olsher-Tannen
460 S. Marion Parkway, #1555
Denver, CO 80209
[email protected]
Janet Padilla
Office of the Fourth Judicial
District Attorney
PO Box 2025
1800 New Mexico Avenue
Las Vegas, NM 87701-2025
505-425-6746
505-425-9372 (fax)
[email protected]
Johanna A. Pickel
Johanna Pickel, LLC
4801 Lang NE, Suite 110
505-798-2515
[email protected]
Sarah Martha Puckett II
5932 Broadmoor Drive
Plano, TX 75093
[email protected]
Nathaniel R. Puffer
New Mexico Legal Aid, Inc.
PO Box 25486
Albuquerque, NM
87571-5486
505-243-7871
505-842-9864 (fax)
[email protected]
Olga Serafimova
50 Holy Family Road, #216
Holyoke, MA 01040
[email protected]
Lauro D. Silva
Silva Law Firm
PO Box 19155
Albuquerque, NM
87191-9155
505-452-2188
505-452-2308 (fax)
[email protected]
Dorie Concetta Biagianti
Smith
PO Box 28443
Santa Fe, NM 87592-8443
505-501-3454
[email protected]
Patricia Tucker
Law Office of
Patricia Tucker, PC
202 Girard Blvd. SE
505-232-0308
505-212-0221 (fax)
[email protected]
LeRoy Raymond Warren
250 East Alameda Street,
Apt. 428
Santa Fe, NM 87501
Jaime Wiesenfeld
15321 Bond Street
Overland Park, KS 66221
505-660-6820
[email protected]
Maria Zannes
505-400-9747
[email protected]
19
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 March 5, 2014
Pending Proposed Rule Changes Open for
Comment:
4-913A
Comment Deadline
None
Writ of restitution (Restitution to owner)
(Uniform Owner Resident Relations Act)
Order setting escrow deposit/appeal bond.
(Uniform Owner Resident Relations Act)
12/31/13
12/31/13
Domestic Relations Forms
Recently Approved Rule Changes
Since Release of 2013 NMRA:
4A-100
Effective Date
Rules of Civil Procedure for the District Courts
1-005.2
Electronic service and filing of pleadings
and other papers 01/29/13
1-047Jurors
12/31/13
1-050Judgment as a matter of law in jury trials;
alternative motion for new trial;
conditional rulings
12/31/13
1-052
Nonjury trials; findings and conclusions
12/31/13
1-059
New trials
12/31/13
1-060
Relief from judgment or order
12/31/13
1-071.4 Statutory stream system adjudication suits;
ex parte contacts; general problems of
administration12/31/13
1-074
Administrative appeals; statutory review by
district of administrative decisions or orders
court12/31/13
1-075
Constitutional review by district court of
administrative decisions and orders.
12/31/13
1-077
Appeals pursuant to Unemployment
Compensation Law
12/31/13
1-079
Public inspection and sealing of court records 12/31/13
1-089.1 Nonadmitted and nonresident counsel
12/31/13
1-120
Domestic relations action; scope; use of forms
in dissolution of marriage proceedings
05/31/13
Rules of Civil Procedure for the Magistrate Courts
2-105
Assignment and designation of judges
2-107
Pro se and attorney appearance
2-111
Telephone conferences
2-603Jurors
05/05/13
12/31/13
12/31/13
12/31/13
Rules of Civil Procedure for the Metropolitan Courts
3-105
Assignment and designation of judges
3-106
Excusal; recusal; disability
3-107
Pro se and attorney appearance
3-603Jurors
12/31/13
12/31/13
12/31/13
12/31/13
Civil Forms
4-118
Order on motion to seal court records
4-119
Order on motion to unseal court records
4-206Summons
4-602
Juror summons, qualification,
and questionnaire form
20
4-913
12/31/13
12/31/13
12/31/13
12/31/13
Domestic relations forms; short title; purpose
of forms; citations regarding use of forms
(Withdrawn)05/31/13
4A-100 Domestic relations forms; instructions
and cautions regarding use of forms
05/31/13
4A 101 Domestic relations cover sheet
05/31/13
4A 101A Domestic relations information sheet
05/31/13
4A-102 Petition for dissolution of marriage
(no children)
05/31/13
4A-103 Petition for dissolution of marriage
(with children)
05/31/13
4A-104Response
05/31/13
4A-105 Entry of appearance pro se
05/31/13
4A-101(Withdrawn)
05/31/13
for stage two (2) forms
05/31/13
4A-201 Domestic relations forms for self-represented
parties; limited purpose of forms; cautions
regarding use of forms (Withdrawn)
05/31/13
4A-201 Temporary domestic order
05/31/13
4A-202 Definitions (Withdrawn)
05/31/13
4A-202 Motion for temporary order
05/31/13
4A-203 Forms not available through courts
(Withdrawn)05/31/13
4A-203 Motion to modify temporary order
05/31/13
4A-204 Domestic relations forms; divorce cases; forms
needed; filing fee (Withdrawn)
05/31/13
4A-204 Motion for referral to mediation
(child custody, timesharing, or visitation)
05/31/13
4A-205 Parenting plan and child support worksheet;
wage withholding order (Withdrawn)
05/31/13
4A-205 Motion for referral to mediation
(child support or other financial issues)
05/31/13
4A-206 Request for hearing
05/31/13
4A-207 Notice of hearing
05/31/13
4A-208 Notice of compliance with Rule 1-123 NMRA 05/31/13
4A-209 Verified motion for order to show cause
05/31/13
4A-210 Order to appear and show cause
05/31/13
4A-211 Objection to hearing officer report
4A-212 Interim monthly income and expenses
statement05/31/13
4A-213 Interim order allocating income and expenses 05/31/13
4A-214 Community property and liabilities schedule 05/31/13
4A-215 Separate property and liabilities schedule
05/31/13
4A-300 Domestic relations forms; instructions for
stage three (3) forms
05/31/13
4A-301 Marital settlement agreement
05/31/13
4A-302 Custody plan
05/31/13
4A-303 Child support obligation
05/31/13
4A-304 Wage withholding order
05/31/13
4A-305 Final decree of dissolution of marriage
05/31/13
for default proceedings
05/31/13
Rule-Making Activity
4A-311
Affidavit as to Respondent’s failure to plead
or otherwise defend
4A-312 Certificate as to the state of the record
4A-313 Application for default judgment and final
decree of dissolution of marriage
4A-321(Withdrawn)
4A-322(Withdrawn)
4A 401 Uncontested petition for paternity; forms
needed; filing fee
4A 402 Petition to establish parentage
4A 403 Final decree of parentage
05/31/13
05/31/13
05/31/13
05/31/13
05/31/13
06/24/13
06/24/13
06/24/13
Rules of Criminal Procedure for the District Courts
5-108
5-115
5-123
5-205
5-212
5-301
Nonadmitted and nonresident counsel
12/31/13
Conduct of court proceedings
12/31/13
Public inspection and sealing of court records 12/31/13
Unnecessary allegations
05/13/13
Motion to suppress
12/31/13
Arrest without warrant; probable cause
determination; first appearance
12/31/13
5-302A Grand Jury Proceedings
12/31/13
5-501
Disclosure by the state
05/13/13
5-606Jurors
12/31/13
Rules of Criminal Procedure for the Magistrate Courts
6-107
Entry of appearance
6-108
Non attorney prosecutions
6-204
Issuance of warrant for arrest and summons
6-206
Arrest warrants
6-208
Search warrants
6-304Motions
6-506
Time of commencement of trial
6-506A Voluntary dismissal and refiled proceedings
6-605Jurors
6-802
Return of the probation violator
12/31/13
12/31/13
07/15/13
07/15/13
07/15/13
12/31/13
12/31/13
12/31/13
12/31/13
05/05/13
Rules of Criminal Procedure for the Metropolitan Courts
7-107
Entry of appearance
7-108
7-204
7-206
Arrest warrants
7-208
Search warrants
7-304Motions
7-506
7-605Jurors
7-802
12/31/13
12/31/13
07/15/13
07/15/13
07/15/13
12/31/13
12/31/13
12/31/13
05/05/13
Rules of Procedure for the Municipal Courts
8-107
Entry of appearance
8-111
8-113
Court Interpreters
8-203
8-205
Arrest warrants
8-207
Search warrants
8-304Motions
8-506
8-506A Voluntary dismissal and refiled proceedings
8-802
12/31/13
12/31/13
12/31/13
07/15/13
07/15/13
07/15/13
12/31/13
12/31/13
12/31/13
05/05/13
Criminal Forms
9-113
9-114
9-201
9-202
9-207A
9-212C
9-306
9-312A
9-408A
9-414
9-415
9-415A
9-513
Order on motion to seal court records
12/31/13
Order on motion to unseal court records
12/31/13
Criminal complaint
12/31/13
Criminal complaint (Withdrawn)
12/31/13
Probable cause determination
12/31/13
Bench warrant
05/05/13
Commitment for preliminary hearing
(Withdrawn)12/31/13
Cash receipt
12/31/13
Plea and disposition agreement
12/31/13
Order dismissing criminal complaint with
prejudice12/31/13
Notice of dismissal non felony case
12/31/13
Notice of dismissal felony case (Withdrawn) 12/31/13
Juror summons, qualification, and
questionnaire form 12/31/13
Children’s Court Rules
10-352
Judgments and appeals
12/31/13
Rules of Evidence
11-501
11-502
11-503
11-504
Privileges recognized only as provided
12/31/13
Required reports privileged by statute
12/31/13
Lawyer client privilege
12/31/13
Physician patient and psychotherapist patient
privilege12/31/13
11-505 Husband wife privileges
12/31/13
11-506 Communications to clergy
12/31/13
11-507 Political vote
12/31/13
11-508 Trade secrets
12/31/13
11-509 Communications to juvenile probation
officers and social services workers
12/31/13
11-510 Identity of informer
12/31/13
11-511 Waiver of privilege by voluntary disclosure 12/31/13
11-512 Privileged matter disclosed under compulsion
or without opportunity to claim privilege
12/31/12
11-513 Comment upon or inference from claim
of privilege; instruction
12/31/13
11-514 News media confidential source or
information privilege
12/31/13
11-1101 Applicability of the rules
05/05/13
Rules of Appellate Procedure
12-201
12-208
12-215
12-601
Appeal as of right; when taken
Docketing the appeal
Brief of an amicus curiae
Appeals from administrative entities and
special statutory proceedings
12/31/13
12/31/13
12/31/13
12/31/13
Uniform Jury Instructions for Civil Cases
13-302F Special verdict form; examples
12/31/13
13-1807 Pain and suffering
12/31/13
13-1807A Loss of enjoyment of life
12/31/13
13-1827 Punitive damages; direct and vicarious liability12/31/13
21
Rule-Making Activity
Uniform Jury Instructions for Criminal Cases
14-956
14-956A
14-970
14-970A
14-2241
14-6019
Criminal sexual penetration in the second
degree; force or coercion; essential elements 12/31/13
Criminal sexual penetration in the second
degree; force or coercion; child 13 to 18;
essential elements
12/31/13
Indecent exposure; essential elements
12/31/13
Aggravated indecent exposure; essential
elements12/31/13
Tampering with evidence; essential elements 12/31/13
Special verdict; tampering with evidence
12/31/13
05/14/13
05/14/13
05/14/13
12/06/13
05/14/13
12/06/13
05/14/13
05/14/13
Rules of Professional Conduct
16-100Terminology
16-101Competence
16-104Communication
16-106 Confidentiality of information
16-117 Sale of a law practice
16-404 Respect for rights of third persons
16-505 Unauthorized practice of law;
multijurisdictional practice of law
12/31/13
12/31/13
12/31/13
12/31/13
12/31/13
12/31/13
12/31/13
Rules Governing Discipline
17-102
17-207
17-208
17-211
Powers and duties
Summary suspension
Incompetency or incapacity
Discipline by consent; stipulated facts
12/31/13
12/31/13
12/31/13
12/31/13
Rules Governing the Client Protection
Fund Commission
17A-005 Composition and offices of the commission
12/31/13
12/31/13
12/31/13
12/31/13
17B-001Jurisdiction
17B-002 Appointment of the Disciplinary Board
17B-003 Disciplinary counsel; duties and powers.
17B-004Investigation
17B-005 Civil injunction proceedings
17B-006 Determination by the Supreme Court
17B-007 Civil contempt proceedings
17B-008Immunities
17B-009 General provisions
01/01/13
08/23/13
08/23/13
08/23/13
08/23/13
08/23/13
08/23/13
08/23/13
08/23/13
08/23/13
Code of Judicial Conduct
21-315
Reporting requirements
04/08/13
Supreme Court General Rules
23-112
Citations for papers and other pleadings
07/01/13
Rules Governing the New Mexico Bar
24-101
24-102
24-106
Board of Bar Commissioners
Annual license fee
Practice by nonadmitted lawyers
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.
22
12/31/13
Rules Concerning the Unauthorized Practice of Law
Rules Governing Admission to the Bar
15-101 Definition; title
15-104Application
15-105 Application fees
15-105 Application fees
15-202 Place and time of examinations
15-205 Administration and granding
15-301.2 Legal services provider limited law license
15-402Qualifications
17-214Reinstatement
17-301 Applicability of rules; application of Rules of
Civil Procedure; service
17-303 Statute of limitations
17-307 Investigation of complaints
17-314 Consideration by the Disciplinary Board
12/31/13
12/31/13
12/31/13
YLD…In Brief
The Official Newsletter of the State Bar of New Mexico Young Lawyers Division
YLD BOARD
Chair, Benjamin I. Sherman
Chair-elect, Kenneth H. Stalter
Vice Chair, Spencer L. Edelman
ABA YLD District 23 Representative, Greg Gambill
Immediate Past Chair, Keya Koul
Director-At-Large, Position 1, Sean M. FitzPatrick
Director-At-Large, Position 2, Tomas J. Garcia
Director-At-Large, Position 3, Dayan Mercedes Hochman
Director-At-Large, Position 4, Benjamin I. Sherman
Director-At-Large, Position 5, Robert Lara
Region 1 Director, Kenneth H. Stalter
Region 2 Director, Joachim Biagi Marjon
Region 3 Director, Tim Scheiderer
Region 4 Director, Erinna Marie Atkins
Region 5 Director, Spencer L. Edelman
UNM Student Liaisons, Daniel C. Apodaca,
Mari Luz Martinez
YLD SECTION LIAISONS
Animal Law, Robert Lara
Appellate Practice, Betsy Martinez
Bankruptcy Law, Daniel White
Children’s Law, Hilari Lipton
Criminal Law, Julpa Daves
Elder Law, Jeanine Steffy
Employment and Labor Law, Samantha Hults
Family Law, Christina Looney
Health Law, Greg Gambill
Immigration Law, Horatio Moreno-Campos
Indian Law, Dustin Jansen
Natural Resources, Energy and Environmental Law,
Kathryn Brack
Prosecutors, Martina Kitzmueller
Public Law, Tania Shahani
Real Property, Trust and Estate, Lesley Nash
Solo and Small Firm, Ryan Roehl
Taxation, Vince Haslam
Trial Practice, Traci Olivares
YLD PROGRAM CHAIRS
VA Outreach: Greg Gambill, Keya Koul
Serving Our Seniors: Dayan Hochman, Tomas Garcia
Wills for Heroes: Erin Atkins, Spencer Edelman,
Greg Gambill, Joachim Marjon, Ken Stalter
Law Day Call-In Program: Spencer Edelman, Ken Stalter
Law Day Essay Contest: Robert Lara
Homeless Legal Clinics: Donna Lynch
Constitution Day: Erin Atkins, Sean FitzPatrick,
Robert Lara, Joachim Marjon, Tim Scheiderer, Ken Stalter
YLD/UNM SOL Mentorship Program
Tomas Garcia, Ben Sherman
YLD/UNM SOL Speed Networking Program
Robert Lara, Ben Sherman
YLD/UNM SOL Mock Interview Program
Spencer Edelman, Tomas Garcia
Summer Fellowship Program
Tomas Garcia, Robert Lara, Ben Sherman
YLD In Brief: Keya Koul
Judicial Brown Bag Luncheon Program, Spencer Edelman
Bylaw Review Committee: Tim Scheiderer, Ken Stalter
Interview Project: Greg Gambill, Robert Lara
YLD CLE 2014 (Formerly Bridge the Gap)
Robert Lara, Ben Sherman
YLD CLE 2014 Annual Meeting: Robert Lara, Ben Sherman
Next Steps Challenge: Greg Gambill
Subgrant Proposal: Sean FitzPatrick, Greg Gambill
YLD…In Brief
March 2014
Message from the YLD Chair…
By Benjamin I. Sherman
A
s any practicing attorney knows, being a young lawyer is a
daunting and oftentimes overwhelming experience. From
demanding hours and difficult clients (and bosses) to burnt nerves
and butterflies, it is not for the faint of heart. At times, it can be
an isolating experience. If you have ever spent a late night inside
a lonely office with a half-written brief on the computer screen in
front of you and an important deadline looming, you know exactly
what I mean. It is times like these when we ask ourselves if we made
the right choice, if our family and friends who are at home cooking dinner, spending
time with their kids, or just enjoying a night out have figured out something that we
somehow missed along the way.
Luckily for the young lawyers of New Mexico, you are not alone. In fact, there are more
than 1,600 “young” lawyers practicing in this state. And all of you are connected by
being members of the State Bar of New Mexico Young Lawyers Division. A “young”
lawyer is defined as an attorney under the age of 36 or a lawyer in his or her first five
years of practice. If you meet this criteria, congratulations! You are automatically a
member of YLD without having to apply, join, or even pay dues. We know … you need
to repay those pesky student loans!
Perhaps you have already heard of YLD. Maybe you volunteered for a Wills for Heroes
event, where you drafted wills and powers of attorney for first responders like police
officers and firefighters. Maybe you participated in our popular UNMSOL/YLD
Mentorship Program and had the chance to help a law student with his or her career
goals. Or maybe you expressed your gratitude for the men and women who have served
in the military by volunteering at the monthly VA clinics. Not the volunteering type?
Perhaps you attended one of the many YLD social events and enjoyed networking and
mingling with other young attorneys. Or perhaps you attended an interesting CLE and
learned valuable practice skills. Or maybe, dare I say it, maybe you really don’t care about
the YLD and wish you would stop getting so many emails and invites. Whatever your
experience with the YLD, one thing is certain: the YLD is here for YOU.
As the 2014 YLD chair, my goal is continue the strong tradition of high quality public
service and membership projects that have been offered in the past, but with an eye on
the future. And on top of that, I want it to be fun! If you have not yet had the chance
to participate in a YLD event, I invite you to make 2014 the year you come out and
give it a try. I promise you will not be disappointed. Whether you are looking for an
opportunity to give back to the community, foster a new relationship, or learn a new
skill, the YLD has something for you. If you are not sure what sorts of opportunities are
available, you can always look in the Bar Bulletin, peruse your emails, ask a YLD board
member, or call the State Bar. Remember, we want you to get involved!
Some of the exciting events that are planned for this year are Wills for Heroes, Serving
Our Seniors, and the monthly VA clinics. As you can see, opportunities abound for
young lawyers wanting to strengthen their ties to the community. If you have ever
continued on page 4
1
Meet the Board
Ben Sherman
Chair
Director-At-Large, Position 4
Ken Stalter
Chair-elect
Region 1 Director
Spencer Edelman
Vice Chair
Region 5 Director
Keya Koul
Immediate Past Chair
Sean M. FitzPatrick
2
Ben Sherman is the founder of Ben Sherman Law LLC, located in downtown Albuquerque. His
practice is focused primarily on representing injured workers in workers’ compensation cases and
plaintiffs in personal injury cases. Prior to becoming a solo practitioner, he worked for the 2nd Judicial
District Attorney’s Office and for the legal department of the City of Albuquerque. He is a graduate
of the University of New Mexico School of Law and has been practicing law in New Mexico for the
past five years. A fluent Spanish-speaker, he enjoys representing people from all communities and
truly appreciates New Mexico’s diversity. In his free time, Sherman enjoys playing recreational soccer,
participating in outdoor activities, listening to music, and spending time with his family and friends.
Ken Stalter is an assistant district attorney with the 11th Judicial District Attorney’s Office, Div. I,
prosecuting a range of felony cases including homicides, sex crimes, and white-collar matters. As a
board member of the Young Lawyers Division, he enjoys participating in the division’s programming
such as Law Day and Constitution Day. In particular, Stalter enjoys teaching fifth graders about the
Constitution and finds their enthusiasm refreshing. In addition to his involvement with the YLD, he
recently was appointed to the N.M. Supreme Court Committee on Rules of Criminal Procedure for
the District Courts. In his spare time, he enjoys running, reading, and writing. He is a graduate of
Cornell University and Harvard Law School.
Spencer Edelman is the YLD Region 5 representative and YLD Vice Chair for 2014. A 2009
graduate of the University of Arizona Law School, he currently is serving as the law clerk for U.S.
Bankruptcy Judge David Thuma. After his clerkship ends, Edelman will return to his practice
focusing on commercial litigation, creditors’ rights, bankruptcy, and real estate at the Modrall
Sperling Law Firm. In addition to his legal work, he remains committed to the YLD and YLD probono service projects including Wills for Heroes and the Law Day Call-in Program, and is on the
board of directors of Law Access New Mexico. In his spare time Edelman plays tennis regularly, cheers
on the University of Arizona basketball team, and attends as many Isotopes baseball games as he can.
Keya Koul practices employment and civil rights law at the law firm of Brown and Gurulé. Koul
received her B.A. from Smith College, her M.A. from University of California, Los Angeles, and
her J.D. from Southwestern Law School. She is the 1st District Bar Commissioner on the Board of
Bar Commissioners. Koul currently serves as chair of the State Bar’s Committee on Diversity in the
Legal Profession. She received a 2013-2014 American Bar Association Presidential Appointment to
the Center for Racial and Ethnic Diversity. Koul also is a 2012-2014 ABA Real Property, Trust, and
Estate Section Fellow. Koul was recently selected as a Finalist for the 2013-2014 ABA YLD National
Outstanding Young Lawyer of the Year Award. In 2011, she was named the State Bar’s Outstanding
Young Lawyer of the Year. Koul loves learning foreign languages and traveling all around the world,
especially to India, where her family is from originally.
Born in Albuquerque but reared in upstate New York, Sean FitzPatrick returned to New Mexico to
complete his undergraduate studies at the University of New Mexico. Fitness and nutrition are a big
part of his life so while attending the UNM School of Law, he joined the Student Union Building
Board and advocated for better food options and dining areas at the law school. He graduated in
2012 from law school with clinical honors and the Natural Resources Certificate. After graduating, he
started work as a prosecutor for the 11th Judicial District Attorney’s Office prosecuting misdemeanor
and felony domestic violence cases. Outside of work, he enjoys being at Lake Powell (along the Utah/
Arizona border) with family, exercising, or playing games of strategy and chance.
YLD…In Brief
Meet the Board
Tomas J. Garcia
Dayan Hochman
Tomas J. Garcia serves as YLD Director-at-Large position 2. He is an associate at Modrall Sperling
in Albuquerque and practices commercial and natural resources litigation. Garcia previously served as
law clerk to Justice Charles W. Daniels of the New Mexico Supreme Court. He has participated in
several YLD projects since joining the State Bar in 2011, including serving as an attorney mentor for
the YLD/University of New Mexico School of Law Mentorship Program; participating in the Mock
Interviews Program for students at the UNM School of Law; and drafting wills for emergency first
responders and their families at Wills for Heroes events. An Albuquerque native, Garcia received his
law degree from the Georgetown University Law Center, his master’s degree in Public Policy from the
John F. Kennedy School of Government at Harvard University, and his bachelor’s degree in Political
Science from Yale University.
Dayan Hochman graduated from the University of New Mexico School of Law in 2011, where
she was the recipient of the Carlos J. Vigil Award for academic excellence and commitment to the
provision of legal services to indigent Latinos and other disadvantaged populations throughout the
state. After law school, she worked for Judge Sarah Singleton at the 1st Judicial District Court as a law
clerk and bailiff. Hochman now is an associate attorney at the Archibeque Law Firm in Albuquerque,
and practices primarily in insurance defense. She is licensed to practice in federal District Court for
the state and the 10th Circuit Court of Appeals. Hochman is the current president of the Women’s
Bar Association of New Mexico and is a member of the State Bar’s Committee on Women and the
Legal Profession. She also is actively involved in the N.M. Defense Lawyers Association and the ABA
Young Lawyers Division.
Robert Lara
Robert Lara works to bring people, projects, and pesos together through the use of the law and
politics. He was hired recently as counsel to the Office of Commissioner Karen L. Montoya at the
New Mexico Public Regulation Commission. His legal practice focuses on administrative, regulatory,
and election law. Lara originally is from El Paso, Texas, and is a 2007 graduate of the University of
New Mexico School of Law, where he received the Dean’s Award for Service to the Law School. He
has worked on a variety of high-profile political campaigns and currently is General Counsel for the
Democratic Party of New Mexico. In addition, Lara is a member of the Board of Directors of the:
New Mexico Hispanic Bar Association, Phi Alpha Delta Law Fraternity International, and the State
Bar Animal Law Section. He has been on the YLD Board since 2012.
Joachim Marjon
Region 2 Director
Joachim Biagi Marjon grew up in the North Valley of Albuquerque and graduated from the
University of New Mexico School of Law in 2009. After being admitted to the State Bar in September
2009, he was fortunate to practice at the Public Defender’s office in Santa Fe, where he worked until
he started his private practice in August 2012. Marjon focuses on civil rights, criminal defense, and
personal injury cases. His office is at 311 Montezuma Ave. in Santa Fe, just a few doors west of the
1st Judicial District Court House. Marjon aims to build camaraderie among the Bar members in
Northern New Mexico while providing volunteer services to our communities. He urges anyone
interested in community service projects to contact him at [email protected]. Marjon is an avid
runner and is improving his mountain biking and snowboarding skills.
Tim Scheiderer
Region 3 Director
Tim Scheiderer is the newly appointed Region 3 director, covering the 5th and 9th Judicial Districts. For
more than a year, he has served as an Assistant District Attorney in Roswell for the 5th Judicial District,
primarily prosecuting DWI and domestic violence cases. A native of Northern California, Scheiderer
received his undergraduate degree in Political Science from the University of California, Los Angeles,
in 2008, and his law degree from Valparaiso University School of Law in 2011. Prior to coming to the
5th Judicial District Attorney’s Office, he served as an analyst for the Voters and Elections Committee
and the Labor and Human Resources Committee of the New Mexico House of Representatives, where
he received his first introduction to New Mexican cuisine. Food hasn’t been the same since. In January,
Scheiderer also began a two-year term on the board of the State Bar’s Prosecutors Section.
YLD…In Brief
3
Meet the Board
Erinna Marie Atkins
Region 4 Director
Greg Gambill
ABA YLD District 23
Representative
Erinna Marie “Erin” Atkins is an attorney in Alamogordo. She practices law with her father and
mentor, S. Bert Atkins. She specializes in criminal defense and children’s law. Atkins currently
maintains a busy practice serving in private, state, and city-appointed public defender and indigent
defense cases while serving as the guardian ad litem for Children, Youth and Families Department
cases. For the past three years, Atkins has served as treasurer of the 12th Judicial District Bar
Association and recently was elected co-president. She also serves: as vice-chair of the Legal
Education Committee for the Legal Studies Programs at NMSU-Alamogordo, on the New Mexico
Commission for Community Volunteerism, and on the board of a non-profit organization. On
weekends, she volunteers with a girls’ youth organization doing community service. Atkins is a 2009
graduate of the University of New Mexico School of Law. Greg Gambill is an attorney in the Albuquerque office of Montgomery & Andrews, P.A. His
practice is focused on healthcare, commercial, and professional liability matters. His healthcare
practice is a mixture of transactional, regulatory compliance, and litigation work. Gambill is the
district representative for New Mexico and Arizona in the ABA Young Lawyers Division. His
community activities include participation in the Leadership New Mexico Connect Class of 20132014, the Albuquerque Community Foundation Future Fund, and the state’s Board of Osteopathic
Medical Examiners. Gambill is a native of St. Louis, and he received his law degree with honors
from the University of Illinois College of Law in 2008. He received his bachelor’s degree from the
University of Washington in Seattle in 2001. Prior to becoming a lawyer, Gambill was a member of
the Smokey Bear Hotshot Crew in Ruidoso.
Message from the Chair continued from cover
volunteered for such an event in the past you know how rewarding
it is, and we thank you for your time and commitment. We realize
we can’t do it without you! Unfortunately, young lawyers don’t
always have the opportunity to see, first-hand, the positive results
of their labor. However, volunteering with YLD can change that.
The community is always extremely appreciative of the young
attorneys who have volunteered their time to draft wills, explain
legal rights and benefits, and offer a much-needed helping hand.
If you have not yet had the opportunity to volunteer for a public
service event put on by YLD, come out and see how rewarding it
can be. And you don’t have to feel like you are unprepared because
we provide all the tools and training you need.
YLD also has enjoyed a historically close relationship with the
University of New Mexico School of Law and offers many
different programs aimed at helping law students transition from
the classroom to the courtroom. This past fall, YLD hosted the
first “open house” at the State Bar to help law students get to know
the building, network with involved lawyers, and feel comfortable
using State Bar resources. We also hosted the popular annual
Speed Networking event, which gave law students the opportunity
to practice their networking skills with actual attorneys in a relaxed
environment. A few weeks ago, many young lawyers participated
in the YLD Mock Interview Program, which gave law students the
chance to practice their interview skills in front of real attorneys
before hitting the job market. The annual UNMSOL/YLD
Mentorship Program is going strong this year, with more than
150 mentors and mentees participating. Again, the opportunities
are endless. But don’t take our word for it, come out and see for
yourself. Hanging out with law students is fun and they really
appreciate your advice.
4
The young lawyers of New Mexico also are fortunate to be wellrepresented nationally in the American Bar Association YLD. In
February, Board members Keya Koul and Day Hochman, along
with young lawyer Mary Modrich-Alvarado, attended the ABA
YLD midyear conference in Chicago on behalf of the N.M. YLD.
The conference was a huge success and New Mexico was proud to
honor and support Keya Koul as she received recognition for being
a finalist for the prestigious ABA YLD National Outstanding
Young Lawyer Award. We are looking forward to the ABA YLD
spring conference in Pittsburgh and will be sending two more
delegates. If you are interested in getting involved on a national
level, please contact YLD Board members Greg Gambill or Keya
Koul and they will happily explain what opportunities await.
Of course, none of this would be possible without the tireless
effort and support of the entire YLD board. The current board
members are Keya Koul, Greg Gambill, Ken Stalter, Spencer
Edelman, Sean FitzPatrick, Tomas Garcia, Day Hochman, Robert
Lara, Joachim Marjon, Tim Scheiderer, and Erin Atkins. Each one
of them is committed to serving the young lawyers of New Mexico
and the amount of time and energy they have spent toward this
purpose is amazing. I am honored and humbled to lead this
fantastic group of individuals, and I am positive that 2014 will be
a great year.
Please ask questions! For more information about YLD and how
to get involved, please visit the YLD website at http://www.nmbar.
org/AboutSBNM/YLD/YLD.html or contact Ben Sherman at
[email protected].
YLD…In Brief
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Opinion Number: 2014-NMSC-003
Topic Index:
Civil Procedure: Real Party in Interest
Civil Rights: Discrimination; Human Rights Act; and Sexual Orientation Discrimination
Constitutional Law: Civil Rights; Equal Protection; and New Mexico Constitution, General
Domestic Relations: Domestic Relations, General
Government: Counties
Judgment: Declaratory Judgment
Remedies: Writ of Superintending Control
Statutes: Constitutionality; Interpretation; and Legislative Intent
ROSE GRIEGO and KIMBERLY KIEL, MIRIAM RAND and ONA LARA PORTER, A.D. JOPLIN and GREG GOMEZ, THERESE
COUNCILOR and TANYA STRUBLE, MONICA LEAMING and CECELIA TAULBEE, and JEN ROPER and ANGELIQUE NEUMAN,
Plaintiffs-Real Parties in Interest,
v.
MAGGIE TOULOUSE OLIVER, in her official capacity as Clerk of Bernalillo County, and GERALDINE SALAZAR,
in her official capacity as Clerk of Santa Fe County,
Defendants-Real Parties in Interest,
and
STATE OF NEW MEXICO, ex rel., NEW MEXICO ASSOCIATION OF COUNTIES, as the collective and organizational
representative of New Mexico’s thirty-three (33) Counties, and M. KEITH RIDDLE, in his official capacity as Clerk of Catron
County, DAVE KUNKO, in his official capacity as Clerk of Chaves County, ELISA BRO, in her official capacity as Clerk of Cibola
County, FREDA L. BACA, in her official capacity as Clerk of Colfax County, ROSALIE L. RILEY, in her official capacity as Clerk of
Curry County, ROSALIE A. GONZALES-JOINER, in her official capacity as Clerk of De Baca County, DARLENE ROSPRIM, in her
official capacity as Clerk of Eddy County, ROBERT ZAMARRIPA, in his official capacity as Clerk of Grant County, PATRICK Z.
MARTINEZ, in his official capacity as Clerk of Guadalupe County, BARBARA L. SHAW, in her official capacity as Clerk of Harding
County, MELISSA K. DE LA GARZA, in her official capacity as Clerk of Hidalgo County, PAT SNIPES CHAPPELLE, in her official
capacity as Clerk of Lea County, RHONDA B. BURROWS, in her official capacity as Clerk of Lincoln County, SHARON STOVER,
in her official capacity as Clerk of Los Alamos County, ANDREA RODRIGUEZ, in her official capacity as Clerk of Luna County,
HARRIETT K. BECENTI, in her official capacity as Clerk of McKinley County, JOANNE PADILLA, in her official capacity as Clerk
of Mora County, DENISE Y. GUERRA, in her official capacity as Clerk of Otero County, VERONICA OLGUIN MAREZ, in her official
capacity as Clerk of Quay County, MOISES A. MORALES, JR., in his official capacity as Clerk of Rio Arriba County, DONNA J.
CARPENTER, in her official capacity as Clerk of Roosevelt County, DEBBIE A. HOLMES, in her official capacity as Clerk of San
Juan County, MELANIE Y. RIVERA, in her official capacity as Clerk of San Miguel County, EILEEN MORENO GARBAGNI, in her
official capacity as Clerk of Sandoval County, CONNIE GREER, in her official capacity as Clerk of Sierra County, REBECCA VEGA,
in her official capacity as Clerk of Socorro County, ANNA MARTINEZ, in her official capacity as Clerk of Taos County, LINDA
JARAMILLO, in her official capacity as Clerk of Torrance County, MARY LOU HARKINS, in her official capacity as Clerk of Union
County, and PEGGY CARABAJAL, in her official capacity as Clerk of Valencia County,
Intervenors-Petitioners,
and
LYNN J. ELLINS,
in his official capacity as Clerk of Doña Ana County,
Real Party in Interest,
and
HON. ALAN M. MALOTT,
Respondent
No. 34,306 (filed December 19, 2013)
ORIGINAL PROCEEDING
continued on next page
23
Advance Opinions
PETER S. KIERST
LYNN E. MOSTOLLER
SUTIN, THAYER & BROWNE, P.C.
Albuquerque, New Mexico
LAURA LOUISE SCHAUER IVES
ALEXANDRA FREEDMAN SMITH
ACLU of New Mexico
STEVEN KOPELMAN
GRACE PHILIPS
New Mexico Association of Counties
and the Intervening County Clerks
Santa Fe, New Mexico
DANIEL A. IVEY-SOTO
for Intervenors
ELIZABETH O. GILL
JAMES D. ESSEKS
American Civil Liberties Union
Foundation
San Francisco, California
GARY K. KING
Attorney General
SCOTT FUQUA
Assistant Attorney General
SEAN M. CUNNIFF
Assistant Attorney General
for Respondent
N. LYNN PERLS
LAW OFFICE OF LYNN PERLS
RAUL A. CARRILLO, JR.
KAREN ELAINE WOOTTON
THE CARRILLO LAW FIRM, P.C.
Las Cruces, New Mexico
for Amicus Curiae
Doña Ana County Clerk
JANE KATHERINE GIRARD
WRAY & GIRARD, P.C.
SHANNON P. MINTER
CHRISTOPHER F. STOLL
National Center for Lesbian Rights
San Francisco, California
JAMES A. CAMPBELL
JOSEPH E. LA RUE
Alliance Defending Freedom
Scottsdale, Arizona
MAUREEN A. SANDERS
SANDERS & WESTBROOK, P.C.
for Plaintiffs
RANDY M. AUTIO
County Attorney
PETER S. AUH
Deputy County Attorney
Office of the Bernalillo County
Attorney
STEPHEN C. ROSS
County Attorney
WILLIE R. BROWN
Assistant County Attorney
Office of the Santa Fe County
Attorney
for Defendants
24
EVIE M. JILEK
for Amicus Curiae
New Mexico Legislators
PAUL M. SMITH
JENNER & BLOCK LLP
Washington, DC
SARAH EILEEN BENNETT
ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, SCHOENBURG &
BEINVENU, LLP
CAREN ILENE FRIEDMAN
for Amici Curiae
American Psychological Association,
New Mexico Psychological
Association, National Association of
Social Workers, National Association of
Social Workers New Mexico, and New
Mexico Pediatric Society
EUGENE I. ZAMORA
City Attorney
ZACHARY A. SHANDLER
Assistant City Attorney
Office of the Santa Fe City Attorney
for Amicus Curiae
City of Santa Fe
MAX JUSTIN MINZNER
GEORGE L. BACH, JR.
University of New Mexico
School of Law
for Amicus Curiae
Professors at University of New
Mexico School of Law
MARY BONAUTO
Gay & Lesbian Advocates &
Defenders
Boston, Massachusetts
DANIEL YOHALEM
for Amici Curiae
Equality New Mexico, National
Organization for Women
Foundation, New Mexico National
Organization for Women, PFLAG New
Mexico, Southwest Women’s Law
Center, Freedom to Marry, Prosperity
Works, American Veterans for Equal
Rights-Bataan Chapter, Transgender
Resource Center of New Mexico,
Human Rights Alliance, Organizers
in the Land of Enchantment, Media
Literacy Project, New Mexico Lesbian
and Gay Lawyers Association,
Anti-Defamation League, Pacific
Association of Reform Rabbis,
Temple Beth Shalom of Santa Fe, The
Unitarian Universalist Congregation
of Santa Fe, Rev. Talitha Arnold,
Rev. Kathryn A. Schlechter, Rising
Sun Ministries, Metropolitan
Community Church of Albuquerque
Advance Opinions
Opinion
Edward L. Chávez, Justice
{1} “All persons are born equally free, and
have certain natural, inherent and inalienable rights, among which are the rights of
enjoying and defending life and liberty,
of acquiring, possessing and protecting
property, and of seeking and obtaining
safety and happiness.” N.M. Const. art. II,
§ 4. These inherent rights, enjoyed by all
New Mexicans, appear along with twentythree other provisions known as the New
Mexico Bill of Rights, which include the
right to bear arms, freedom of speech,
freedom of the press, freedom from unreasonable government searches and seizures,
due process, and the equal protection of
the laws. See N.M. Const. art. II, §§ 6,
10, 17, 18. When government is alleged
to have threatened any of these rights,
it is the responsibility of the courts to
interpret and apply the protections of the
Constitution. The United States Supreme
Court explained the courts’ responsibility
as follows:
The very purpose of a Bill of
Rights was to withdraw certain
subjects from the vicissitudes
of political controversy, to place
them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the courts. One’s right to
life, liberty, and property, to free
speech, a free press, freedom of
worship and assembly, and other
fundamental rights may not be
submitted to vote; they depend
on the outcome of no elections.
W. Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624, 638 (1943). Thus, when
litigants allege that the government has
unconstitutionally interfered with a right
protected by the Bill of Rights, or has
unconstitutionally discriminated against
them, courts must decide the merits of
the allegation. If proven, courts must
safeguard constitutional rights and order
an end to the discriminatory treatment.
{2}Interracial marriages were once prohibited by laws in many states until the
United States Supreme Court declared
such laws unconstitutional and ordered
an end to the discriminatory treatment.
Loving v. Virginia, 388 U.S. 1, 12 (1967)
(“[R]estricting the freedom to marry
solely because of racial classifications
violates the central meaning of the Equal
Protection Clause.”). The same-gender
couples in this case, all of whom are in
long-term, committed relationships,
some of whom have raised foster and
adoptive children together, allege that
they have a constitutional right under
the Due Process and Equal Protection
provisions of New Mexico’s Bill of Rights
to enter into civil marriages and to enjoy
the concomitant legal rights, protections,
and responsibilities of marriage. Consistent with our constitutional responsibility
to determine whether legislation offends
the New Mexico Constitution, the question we must answer is whether the State
of New Mexico may decline to recognize
civil marriages between same-gender
couples and therefore deprive them of
the rights, protections, and responsibilities available to opposite-gender married
couples without violating the New Mexico
Constitution.
{3} Although this question arouses sincerely-felt religious beliefs both in favor
of and against same-gender marriages,
our analysis does not and cannot depend
on religious doctrine without violating
the Constitution.1 See N.M. Const. art.
II, § 11; Larson v. Valente, 456 U.S. 228,
244 (1982) (“[O]ne religious denomination cannot be officially preferred over
another.”). Instead we must depend upon
legal principles to analyze the statutory
and constitutional bases for depriving
same-gender couples from entering into
a purely secular civil marriage and securing the accompanying rights, protections,
and responsibilities of New Mexico laws.
Our holding will not interfere with the
religious freedom of religious organizations or clergy because (1) no religious
organization will have to change its
policies to accommodate same-gender
couples, and (2) no religious clergy will
be required to solemnize a marriage
in contravention of his or her religious
beliefs. See NMSA 1978, § 28-1-9(B) &
(C) (1969, as amended through 2004)
(describing exemption of religious organizations from the New Mexico Human
Rights Act).
Summary
{4}We conclude that although none of
New Mexico’s marriage statutes specifically
prohibit same-gender marriages, when
read as a whole, the statutes have the effect
of precluding same-gender couples from
marrying and benefitting from the rights,
protections, and responsibilities that
flow from a civil marriage. Same-gender
couples who wish to enter into a civil marriage with another person of their choice
and to the exclusion of all others are similarly situated to opposite-gender couples
who want to do the same, yet they are
treated differently. Because same-gender
couples (whether lesbian, gay, bisexual,
or transgender, hereinafter “LGBT”) are a
discrete group which has been subjected
to a history of discrimination and violence,
and which has inadequate political power
to protect itself from such treatment, the
classification at issue must withstand intermediate scrutiny to be constitutional.
Accordingly, New Mexico may neither
constitutionally deny same-gender couples
the right to marry nor deprive them of the
rights, protections, and responsibilities
of marriage laws, unless the proponents
of the legislation—the opponents of
same-gender marriage—prove that the
discrimination caused by the legislation
is “substantially related to an important
government interest.” Breen v. Carlsbad
Mun. Sch., 2005-NMSC-028, ¶ 13, 138
N.M. 331, 120 P.3d 413 (internal quotation
marks and citation omitted).
{5}The opponents of same-gender marriage assert that defining marriage to
prohibit same-gender marriages is related
to the important, overriding governmental
interests of “responsible procreation and
childrearing” and preventing the deinstitutionalization of marriage. However,
the purported governmental interest of
“responsible procreation and childrearing” is not reflected in the history of the
development of New Mexico’s marriage
laws. Procreation has never been a condition of marriage under New Mexico law,
as evidenced by the fact that the aged, the
infertile, and those who choose not to have
children are not precluded from marrying.
In addition, New Mexico law recognizes
the right of same-gender couples to raise
children. NMSA 1978, § 32A-5-11 (1993)
1 Every man [or woman] shall be free to worship God according to the dictates of his [or her] own conscience, and no person shall
ever be molested or denied any civil or political right or privilege on account of his [or her] religious opinion or mode of religious
worship. No person shall be required to attend any place of worship or support any religious sect or denomination; nor shall any
preference be given by law to any religious denomination or mode of worship.
N.M. Const. art. II, § 11.
25
Advance Opinions
(recognizing parties who are eligible to
adopt children); see also Chatterjee v.
King, 2012-NMSC-019, ¶ 84, 280 P.3d 283
(Bosson, J., specially concurring) (recognizing the right of a former same-gender
partner who supported both the child and
her former partner to have standing to
seek custody of the child). Finally, legislation must advance a state interest that is
separate and apart from the classification
itself. It is inappropriate to define the
governmental interest as maintaining only
opposite-gender marriages, just as it was
inappropriate to define the governmental
interest as maintaining same-race marriages in Loving. Therefore, the purported
governmental interest of preventing the
deinstitutionalization of marriage, which
is nothing more than an argument to
maintain only opposite-gender marriages,
cannot be an important governmental
interest under the Constitution.
{6} We conclude that the purpose of New
Mexico marriage laws is to bring stability
and order to the legal relationship of committed couples by defining their rights and
responsibilities as to one another, their
children if they choose to raise children
together, and their property. Prohibiting
same-gender marriages is not substantially
related to the governmental interests advanced by the parties opposing same-gender marriage or to the purposes we have
identified. Therefore, barring individuals
from marrying and depriving them of the
rights, protections, and responsibilities of
civil marriage solely because of their sexual
orientation violates the Equal Protection
Clause under Article II, Section 18 of the
New Mexico Constitution. We hold that
the State of New Mexico is constitutionally
required to allow same-gender couples
to marry and must extend to them the
rights, protections, and responsibilities
that derive from civil marriage under New
Mexico law.
Procedural history
{7} A marriage license is “required under
New Mexico law as evidence that a marriage fully complies with all requirements
of the law.” Rivera v. Rivera, 2010-NMCA106, ¶ 19, 149 N.M. 66, 243 P.3d 1148.
Therefore, denying marriage licenses to
same-gender couples would be tantamount to denying them the right to enter
into a civil marriage with all of its attendant
legal rights, protections, and responsibilities. New Mexico County Clerks (Clerks)
are delegated the responsibilities of issuing marriage licenses to couples who
are qualified to enter into civil marriages
and filing the licenses once the couples
are married. NMSA 1978, § 40-1-10(A)
(1905, as amended through 2013). The
Doña Ana County Clerk voluntarily began
issuing marriage licenses to same-gender
couples on August 21, 2013. Several other
Clerks did the same, while others did not
do so until ordered by a court; yet others
continued to decline to issue marriage licenses to same-gender couples. A number
of lawsuits were initiated as a result of the
Clerks’ actions.
{8}Plaintiffs filed their complaint in
Griego, seeking a declaration “that it is unlawful to deny same-sex couples the freedom to marry on the basis of sex or sexual
orientation because such denial deprives
them of fundamental rights and liberties.”
They also sought a permanent injunction
requiring, in part, that “Defendants implement and enforce all aspects of the state’s
marriage law . . . without discriminating
on the basis of sex or sexual orientation”
and that Defendants treat Plaintiffs “once
married . . . [,] equally with all other
married couples under the Constitution
and laws of New Mexico.”
{9}On August 29, 2013, following an
initial declaratory judgment in Griego,
the New Mexico Association of Counties, as the organizational representative
for the State’s thirty-three Clerks, filed an
unopposed motion to intervene based on
a common question of law under Rule
1-024(B)(2) NMRA, stating their future
intentions to “seek immediate review from
the state Supreme Court.” The Clerks asserted that they have a “need for an immediate ruling that is applicable statewide and
that resolves the constitutional questions
at the highest level of appellate review.”
{10} On September 3, 2013, the district
court issued its final declaratory judgment
stating that the refusal to issue marriage
licenses to otherwise qualified samegender couples violated Article II, Section
18 of the New Mexico Constitution. On
September 5, 2013, the Clerks filed, and
we accepted, a verified petition for writ of
superintending control. Prior to accepting the writ in this case, this Court had
denied two separate verified petitions for
writs of mandamus “without prejudice to
the parties to pursue litigation of issues
in the lower court with a right to request
expedited review.” See Hanna v. Salazar,
No. 34,216 (non-precedential order, N.M.
Sup. Ct. Aug 15, 2013); Griego v. Oliver,
No. 34,227 (non-precedential order, N.M.
Sup. Ct. Aug. 15, 2013). Both cases were
subsequently decided in the district courts.
See State ex rel. Hanna v. Salazar, No.
D-0101-CV-2013-02182, Aug. 22, 2013;
Griego v. Oliver, D-202-CV-2013-02757,
Sept. 3, 2013. In addition, a number of
other district courts have issued writs or
orders requiring Clerks to issue marriage
licenses to same-gender couples in New
Mexico. See State ex rel. Stark v. Martinez,
No. D-820-CV-2013-295, alternative writ
of mandamus issued in the Eighth Judicial
District Court on August 27, 2013 affecting Taos County; State ex rel. Newton v.
Stover, No. D-132-CV-2013-00094, alternative writ of mandamus issued in the
First Judicial District Court on August 29,
2013 affecting Los Alamos County; Katz
v. Zamarripa, No. D-608-CV-2013-00235,
final order and permanent injunction issued in the Sixth Judicial District Court on
September 5, 2013 affecting Grant County.
Other cases are awaiting the outcome of
the petition for writ of superintending
control that is presently before this Court.2
Our exercise of superintending control
is appropriate in this case
{11} Article VI, Section 3 of the New
Mexico Constitution provides that “[t]he
supreme court shall have . . . superintending control over all inferior courts; it shall
also have power to issue . . . writs necessary
or proper for the complete exercise of its
jurisdiction and to hear and determine
the same.” When we deem it appropriate,
we exercise our power of superintending
control “to control the course of ordinary
litigation in inferior courts . . . even when
there is a remedy by appeal, where it is
deemed to be in the public interest to
settle the question involved at the earliest
moment.” State ex rel. Schwartz v. Kennedy,
1995-NMSC-069, ¶¶ 7-8, 120 N.M. 619,
904 P.2d 1044 (internal quotation marks
and citations omitted).
2 These cases include Gering v. Garbagni, No. D-1329-CV-2013-01715 (Sandoval County) and three cases brought by state legislators
to challenge the validity of licenses already issued, in some cases where individual Clerks have issued marriage licenses to same-gender
couples, even without a court order directing them to do so. Sharer v. Ellins, No. CV-2013-2061 (Doña Ana County); Sharer v. Rivera,
No. D-412-CV-2013-00367 (San Miguel County); Sharer v Carabajal, No. D-1314-CV-2013-01058 (Valencia County).
26
Advance Opinions
{12}In Schwartz, we exercised our discretion to decide a double jeopardy question
that had created uncertainty in the courts
“[i]n order to provide a prompt and final
resolution to this troubling question.” Id.
¶ 9. The Clerks urge us to exercise our
power of superintending control as we
did in Schwartz because they are also in
a position of uncertainty regarding their
responsibilities to issue same-gender marriage licenses.
{13} The record before us reflects the
uncertainty described by the Clerks. At
the time this petition was filed, eight New
Mexico counties were issuing marriage
licenses to same-gender couples, while
twenty-four were not. By October 23,
2013, the date of oral argument before this
Court, over 1,466 marriage licenses had
been issued.
{14} We requested briefing to consider
the merits of this case because (1) the
parties complied with this Court’s order to
pursue litigation in the lower courts and
thereafter requested expedited review; (2)
the varying positions of the courts and the
Clerks regarding the issuance of licenses
to same-gender couples created chaos
statewide; (3) the Clerks are performing
a duty under state law and they express
uncertainty and disagreement about how
to proceed; (4) there are currently more
than 1,400 same-gender couples whose
New Mexico marriages may not be recognized for the purpose of receiving federal
benefits due to the lingering uncertainty
about the law in New Mexico; and (5)
there is a high volume of cases ruled upon
by district courts and pending throughout
New Mexico regarding the common question of law regarding whether same-gender
marriage is lawful in New Mexico. Once
we agreed to hear this case we invited and
accepted amicus curiae briefs to ensure
that the important issues before us were
adequately briefed and argued to this
Court. We affirm the district courts and
grant the writ of superintending control.
The real parties in interest who seek to
marry
{15} The real parties in interest in this
case (Plaintiffs) are six same-gender
couples from four New Mexico counties
who wish to marry and who were the
plaintiffs in the Second Judicial District
Court case of Griego v. Oliver, No. D202-CV-2013-02757. Plaintiffs include
accountants, interior designers, real
estate brokers, teachers, small business
owners, and engineers at our national
laboratories. Many are active in commu-
nity service; they volunteer and work for
non-profit organizations, and serve on
municipal boards and city councils. They
have formed stable family units involving mutual protection and support, and
together they have raised children, cared
for aging parents, and tried to have those
family units formally recognized through
both legal and ceremonial means.
{16} As of August 16, 2013, the date they
filed their second amended complaint,
Plaintiffs Rose Griego (Rose) and Kimberly Kiel (Kim) had been in a committed relationship for eight years; Plaintiffs
Miriam Rand (Miriam) and Ona Lara
Porter (Ona) had been in a committed
relationship for twenty-five years; Plaintiffs Aaron Joplin (A.D.) and Greg Gomez
(Greg) had been in a committed relationship for seven years; Plaintiffs Therese
Councilor (Therese) and Tanya Struble
(Tanya) had been in a committed relationship for twenty-three years and own a business together; Plaintiffs Monica Leaming
(Monica) and Cecilia Taulbee (Cecilia)
had been in a committed relationship for
fifteen years; and Plaintiffs Jen Roper (Jen)
and Angelique Neuman (Angelique) had
been in a committed relationship for the
past twenty-one years.
{17} Several of the Plaintiff couples raise
or have raised children and grandchildren
together. Miriam and Ona raised three
children together during the course of
their twenty-five-year relationship. Their
youngest daughter, who was only three
when Miriam and Ona combined households, legally changed her surname to
Porter-Rand to reflect the importance of
both of the mothers in her life. Their middle daughter, Cherif, is physically disabled
and can no longer care for her fourteenyear-old daughter, who has cerebral palsy.
Ona has adopted Cherif ’s daughter and
Miriam plans to initiate a second-parent
adoption. Until the adoption is finalized,
Miriam does not have automatic legal
authority to make important decisions for
her granddaughter, whom she is helping to
raise. Monica and Cecilia raised Cecilia’s
three children to adulthood during their
fifteen-year relationship; all three children
consider Monica as another parent, and
she considers them to be her children.
Similarly, Kim’s college-aged children
refer to Rose as their step-mother. A.D.
and Greg have no biological children, but
they maintain a relationship with their
former long-term foster child they raised
who is now an adult, who calls them both
Dad. Jen and Angelique adopted three
preschool-age brothers from the custody
of the Children, Youth & Families Department and have raised them together. The
two youngest boys live with their mothers,
while the eldest left home after enlisting
in the United States Army following his
graduation from high school. All three
brothers support their mothers’ efforts to
legally marry.
{18} The inability to legally marry has
adversely impacted several of the Plaintiff
couples who have endured significant familial and medical hardships together. On
one occasion, when Rose was hospitalized,
the hospital refused to provide Kim with
any information about Rose’s condition or
treatment until Rose’s other family members arrived, despite the fact that it was Kim
who took Rose to the hospital. Miriam and
Ona cared for each other’s aging parents,
and both women’s mothers passed away
within one year of each other. However,
Miriam was not eligible for bereavement
leave when Ona’s mother died, and Ona
was not eligible for bereavement leave when
Miriam’s mother died. Also, due to restrictive next-of-kin and family-only limitations
on visitation and medical decision-making,
Miriam and Ona were forced to pretend
to be sisters. Jen was diagnosed with an
aggressive form of brain cancer in late
2012, and doctors told her she had eighteen
months to live. After surgery to partially
remove the tumor, Jen suffered a stroke,
which impaired some of her physical and
cognitive functions. At the time Plaintiffs
filed their complaint, Jen had been placed
in an assisted living facility, and Angelique
was spending several hours each day with
her. Because Jen and Angelique could not
legally marry, Angelique could not collect
spousal benefits as a result of Jen’s disability,
despite their twenty-one-year relationship.
When read as a whole, New Mexico
marriage statutes prohibit samegender marriages
{19} We begin our legal discussion with
an analysis of New Mexico marriage statutes to determine whether the statutes
authorize or prohibit same-gender marriages. If the statutes can be interpreted
to authorize same-gender marriages,
including all of the rights, protections, and
responsibilities that come with being married, the constitutional questions raised
by Plaintiffs are irrelevant. See Chatterjee,
2012-NMSC-019, ¶ 18 (“[W]e seek to
avoid an interpretation of a statute that
would raise constitutional concerns.”).
{20} Our principal goal in interpreting
statutes is to give effect to the Legislature’s
27
Advance Opinions
intent. Baker v. Hedstrom, 2013-NMSC-043,
¶ 11, 309 P.3d 1047. The Legislature first
enacted our State’s basic marriage statutes in
1862. Our analysis begins with NMSA 1978,
Section 40-1-1 (1862-63), which provides
that “[m]arriage is contemplated by the law
as a civil contract, for which the consent
of the contracting parties, capable in law
of contracting, is essential.” “Each couple
desiring to marry pursuant to the laws of
New Mexico shall first obtain a license from
a county clerk of this state and following a
ceremony conducted in this state file the
license for recording in the county issuing
the license.” Section 40-1-10(A). Although
the references to the phrase “contracting
parties” in Section 40-1-1 and the term
“couple” in Section 40-1-10(A) are genderneutral and suggest that same-gender marriages may not be prohibited, we must read
these phrases in context with other statutes
relating to marriage. See State v. Rivera,
2004-NMSC-001, ¶ 13, 134 N.M. 768, 82
P.3d 939 (“[A] statutory subsection may not
be considered in a vacuum, but must be considered in reference to the statute as a whole
and in reference to statutes dealing with
the same general subject matter.” (internal
quotation marks and citation omitted)).
{21} As early as 1905, the Legislature also
developed forms “[t]o insure a uniform
system of records of all marriages hereafter contracted, and the better preservation
of said record for future reference. . . .”
1905 N.M. Laws, ch. 65, § 7. The forms
included an application for marriage license, a marriage license, and a marriage
certificate. Id. § 8. The application and
marriage license did not contain any gender-specific designations. However, the
marriage certificate required signatures
from both the “groom” and the “bride.” Id.
“Under the rules of statutory construction,
we first turn to the plain meaning of the
words at issue, often using the dictionary
for guidance.” New Mexico Attorney Gen.
v. New Mexico Pub. Regulation Comm’n,
2013-NMSC-042, ¶ 26, 309 P.3d 89. In
the context of marriage, “groom” and
“bride” are gender-specific terms. See The
American Heritage Dictionary 230 (5th ed.
2011) (defining “bridegroom” as “[a] man
who is about to be married or has recently
been married” and “bride” as “[a] woman
who is about to be married or has recently
been married”).
{22} In 1961, the Legislature amended
the application form for a marriage license
to specifically call for a “Male Applicant”
and a “Female Applicant.” NMSA 1978,
§ 40-1-18 (1953, amended 1961). The
marriage certificate also required the
signatures of a groom and a bride. The
amendment of the application form and
the fact that the marriage forms have remained the same since 1961 suggest that
the Legislature intended a civil marriage
to be between a man and a woman. The
consanguinity provisions contained in
NMSA 1978, Section 40-1-7 (1876, as
amended through 2013) that void marriages between a male and certain female
relatives and between a female and certain
male relatives also suggest that the Legislature did not intend to permit same-gender
couples to marry. Finally, the provisions in
NMSA 1978, Chapter 40, Article 2 (1901,
as amended through 1973) that define
the rights of married persons generally
refer to “husband and wife”3; the provisions in NMSA 1978, Chapter 40, Article
3 (1907, as amended through 1997) address the property rights of “husband and
wife”4; and the provisions in NMSA 1978,
Chapter 40, Article 4 (1901, as amended
through 2011) address the dissolution of
marriage between “husband and wife.”5
See Garcia v. Jeantette, 2004-NMCA-004,
¶ 18, 134 N.M. 776, 82 P.3d 947 (“ ‘Either
party,’ as that term is used in Section 404-7(A), can logically only refer to the parties to the underlying domestic relations
proceeding, that is, husband and wife.”).
“Husband” and “wife” are gender-specific
terms. See Black’s Law Dictionary 810,
1735 (9th ed. 2009) (defining “husband”
as “[a] married man” and “wife” as “[a]
married woman”).
{23} Thus, we conclude that a mix of
gender-neutral and gender-specific terminology in the domestic relations statutes
does not mean that the Legislature intended
to authorize marriage between same-gender
couples. On the contrary, we conclude that
the statutory scheme reflects a legislative intent to prohibit same-gender marriages. See
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d
941, 953 (Mass. 2003) (Because state law is
“silent as to the consanguinity of male-male
or female-female marriage applicants . . .
the Legislature did not intend that same-sex
couples be licensed to marry.”); Li v. State,
110 P.3d 91, 96 (Or. 2005) (en banc) (state
law specifies that marriage is a civil contract
entered into by a male and a female); Baker
v. State, 744 A.2d 864, 869 (Vt. 1999) (state
law specifies that marriage licenses specify
“bride,” which is defined as a woman, and
“groom,” which is defined as a man).
{24} Even if we were to conclude that the
gender-neutral language in Sections 40-1-1
and 40-1-10 authorizes same-gender marriages, we could not avoid the constitutional
challenge raised by Plaintiffs. Plaintiffs “seek
vindication not only of their constitutional
right to marry, but their entitlement to all
the essential protections and responsibilities
attendant on marriage.” Interpreting our
statutes to authorize committed same-gender
couples to enter into civil marriage will grant
them the rights and privileges available to
opposite-gender married couples in approximately one thousand statutes and federal
regulations that refer to a person’s marital
status, thereby avoiding a constitutional
challenge on that basis. See United States v.
Windsor, ___ U.S. ___, ___, ___, 133 S. Ct.
2675, 2694, 2695-96 (2013) (striking down
Section 3 of the federal Defense of Marriage
Act (DOMA), Pub. L. No. 104-199, 110 Stat.
2419 (1996) (codified at 1 U.S.C. § 7 (1977);
28 U.S.C. § 1738C (1997)), and holding that
the federal government must extend federal marital benefits to same-gender couples
lawfully married in states that recognize
same-gender civil marriages6). However, the
phrasing of many of New Mexico’s statutes
3 See, e.g., §§ 40-2-1, -8.
4 See, e.g., §§ 40-3-1, -12.
5 See, e.g., § 40-4-3.
6 Since the filing of United States v. Windsor, ___ U.S. ___, 133 S. Ct. 2675, federal agencies have engaged in a pattern and practice
of limiting the extension of benefits to same-gender couples who have a valid marriage certificate, declining to extend the benefits
to same-gender couples in a civil union or domestic partnership. This pattern and practice is what prompted New Jersey to declare
its civil union legislation unconstitutional. Garden State Equal. v. Dow, ___ A.3d ___, ___, 2013 WL 6153269, at *1 (N.J. Super. L.
2013); affirmed by Garden State Equal. v. Dow, ___ A.3d ___, ___, 2013 WL 5687193, at *1 (N.J. 2013). Governor Christie withdrew
his appeal of the Superior Court decision, thus leaving the court’s decision making same-gender marriage legal in New Jersey the
controlling law. See Kate Zernike and Marc Santora, As Gays Wed in New Jersey, ChristieEnds Court Fight, N.Y. Times, Oct. 21, 2013,
http://www.nytimes.com/2013/10/22/nyregion/christie- withdraws-appeal-of-same-sex-marriage-ruling-in-new-jersey.html.
28
Advance Opinions
limits the concomitant state-based rights,
protections, and responsibilities of marriage
to opposite-gender married couples. See nn.3
& 4, supra. Were we to interpret the marriage
statutes as permitting same-gender marriages, we would still have to decide whether
depriving same-gender married couples
of concomitant state-based marital rights,
protections, and responsibilities violates
the Equal Protection Clause of Article II,
Section 18 of the New Mexico Constitution.
Therefore, despite the lack of an express
legislative prohibition against same-gender
marriage, we will analyze the constitutionality of denying same-gender couples the right
to marry and depriving them of “the essential
protections and responsibilities attendant on
marriage.”
Plaintiffs’ constitutional challenge is
based on equal protection and a claim
that the right to marry is a
fundamental right
{25} Plaintiffs contend that New Mexico’s
laws denying same-gender couples the
same right to a civil marriage as that enjoyed by opposite-gender couples violates
the Equal Protection Clause of Article II,
Section 18 of the New Mexico Constitution
because it discriminates against them on
the basis of either their sex or their sexual
orientation. See id. (“No person shall be
. . . denied equal protection of the laws.”).
Plaintiffs also contend that the right to
marry is a fundamental right and the State’s
interference with the exercise of this right
also violates the New Mexico Constitution.
Plaintiffs do not claim that New Mexico’s
marriage laws violate the United States
Constitution.
{26} We will address the equal protection
challenge before discussing the fundamental rights issue. We interpret the equal protection challenge to raise two questions: (1)
do committed same-gender couples have a
constitutional right to be married, and (2)
do they have a constitutional right to the
rights, protections, and responsibilities afforded to married opposite-gender couples?
{27} We apply the equal protection approach announced in Breen to answer
these two constitutional questions. This
approach generally requires us to first
determine whether the legislation creates
a class of similarly situated individuals and
treats them differently. 2005-NMSC-028, ¶
10. If it does, we then determine the level
of scrutiny that applies to the challenged
legislation and conclude the analysis by
applying the appropriate level of scrutiny
to determine whether the legislative classification is constitutional.
Same-gender couples who seek to
marry are situated similarly to
opposite-gender couples who seek to
marry
{28} Plaintiffs contend that they are similarly situated to opposite-gender couples
who seek to be married because they also
are in committed and loving relationships. Some of these Plaintiffs are raising
families, similar to many opposite-gender
couples who also seek to be married. They
assert that recognition of their status as
married couples will provide them with
a stable framework within which to care
for each other and raise families, similar
to opposite-gender couples who want to
marry and raise their families.
{29} The opponents of same-gender marriage concede that same-gender couples
may be similarly situated to oppositegender couples with respect to their love
and commitment to one another, but they
contend that these similarities are beside
the point. The opponents contend that
the government’s overriding purpose for
recognizing and regulating marriage is “responsible procreation and child-rearing,”
which they describe as the ability of a
married couple to naturally produce children. In addition, because same-gender
couples do not have the natural capacity
to create children through their sexual
relationships, the opponents contend that
same-gender couples cannot be similarly
situated to opposite-gender couples.
{30} To determine whether same-gender
and opposite-gender couples who seek to
marry are similarly situated with respect
to NMSA 1978, Chapter 40, “we must look
beyond the classification to the purpose
of the law.” New Mexico Right to Choose/
NARAL v. Johnson (NARAL), 1999NMSC-005, ¶ 40, 126 N.M. 788, 975 P.2d
841(internal quotation marks and citation
omitted). None of the parties dispute the
fact that children benefit from stable family relationships. However, the history of
New Mexico’s marriage statutes does not
support the contention that the overriding purpose of Chapter 40 is “responsible
procreation and childrearing.” Our review
of the marriage statutes dating back to
1862 has not revealed any language, either
implicit or explicit, that requires applicants
for a marriage license to attest to their
ability or intention to conceive children
through sexual relationships. Counsel for
the opponents of same-gender marriage
also cannot cite to any such language.
{31} Fertility has never been a condition
of marriage, nor has infertility ever been
a specific ground for divorce. Beginning
in 1884, a divorce could only be granted
on specific grounds, which at the time
only included “adultery, cruel or inhuman
treatment and abandonment.” 1884 Compiled Laws of New Mexico, Title X, ch. II,
§ 998. In 1915, “impotency” was added as
another specified ground for divorce, 1915
Compiled Laws of New Mexico, ch. LV, §
2773, but neither infertility nor unwillingness to have children has ever been specific
grounds for divorce.
{32} Even assuming arguendo that
procreation is the overriding purpose of
the New Mexico marriage laws, samegender and opposite-gender couples are
still similarly situated, yet they are treated
differently. Opposite-gender couples
who are incapable of naturally producing
children, or who simply do not intend to
have children, are not prohibited from
marrying, and they still benefit from
concomitant marital rights, protections,
and responsibilities. In addition, just as
opposite-gender couples may adopt or
have children utilizing assisted reproduction, so too may same-gender couples.
However, opposite-gender couples who
adopt or have children utilizing assisted
reproduction are not prohibited from marrying, and they and their families benefit
from state-granted marital rights, protections, and responsibilities. Same-gender
couples are prohibited from marrying,
and they and their families are deprived of
the rights, protections, and responsibilities
available under our marriage laws, even if
they choose to have a family by adoption
or assisted reproduction.
{33} Procreation is not the overriding
purpose of the New Mexico marriage laws.
The purpose of the New Mexico marriage
laws is to bring stability and order to the
legal relationships of committed couples
by defining their rights and responsibilities as to one another, their property, and
their children, if they choose to have
children. This purpose is self-evident from
the structure of our laws. NMSA 1978,
Chapter 40, Article 1 (1859, as amended
through 2013) generally describes our
marriage laws. Civil marriage is purely
secular; it is a civil contract. Section 40-11. The civil contract must be solemnized
during a ceremony by ordained clergy or
certain other designated officials who are
not ordained clergy. Section 40-1-2. With
respect to children, the general marriage
laws provide that “[a] child born to parents
who are not married to each other has the
same rights pursuant to the law as a child
29
Advance Opinions
born to parents who are married to each
other.” Section 40-1-16(A).
{34} NMSA 1978, Chapter 40, Article 2
generally describes the rights of married
persons. It begins by specifying that the
“[h]usband and wife contract toward each
other obligations of mutual respect, fidelity and support.” Section 40-2-1. Other
provisions in Article 2 describe in general
terms marriage settlements or separation
contracts, requiring that any such agreements be in writing. Section 40-2-4.
{35} NMSA 1978, Chapter 40, Article 3
defines the property rights of a married
couple and establishes equality in property
ownership by enacting the Community
Property Act, NMSA 1978, §§ 40-3-6 to
-17 (1973, as amended through 1997).
Section 40-3-7. Gender-neutral language is
used throughout the Community Property
Act. See §§ 40-3-6 to -17. NMSA 1978,
Chapter 40, Article 4 provides for the orderly dissolution of a marriage. See §§ 404-1 to -20. Finally, the Family Preservation
Act, NMSA 1978, §§ 40-15-1 to -4 (2005),
also supports our conclusion that the
overriding purpose of our marriage laws
is the stability of marriage for the benefit
of married couples and their families. “The
purpose of the Family Preservation Act is
to confirm the state’s policy of support for
the family and to emphasize the responsibilities of parents and the state in the
healthy development of children and the
family as an institution.” Section 40-15-2.
These statutes do not indicate a legislative
concern with whether a couple procreates.
Instead, these statutes, when considered
as a whole, evince an overriding concern
with protecting the stability of family units,
whether they are procreative or not.
{36} We conclude that same-gender
couples who are in loving and committed
relationships and want to be married under the laws of New Mexico are similarly
situated to opposite-gender couples who
likewise are in loving and committed
relationships and want to be married.
Other courts that have considered this
issue have also found that same-gender
and opposite-gender couples who want
to marry are similarly situated. In In re
Marriage Cases, 183 P.3d 384 (Cal. 2008),
the California Supreme Court concluded
that the two classes are similarly situated
because:
Both groups at issue consist of
pairs of individuals who wish to
enter into a formal, legally binding and officially recognized,
long-term family relationship
30
that affords the same rights and
privileges and imposes the same
obligations and responsibilities.
Under these circumstances, there
is no question but that these
two categories of individuals are
sufficiently similar to bring into
play equal protection principles
that require a court to determine
“‘whether distinctions between
the two groups justify the unequal treatment.’”
Id. at 435 n.54 (quoting People v. Hofsheier,
129 P.3d 29, 37 (Cal. 2006)), superseded
by constitutional amendment as stated in
Strauss v. Horton, 207 P.3d 48, 115 (Cal.
2009) and Hollingsworth v. Perry, ___ U.S.
___, ___, 133 S. Ct. 2652, 2659 (2013).
{37}In Kerrigan v. Commissioner of
Public Health, 957 A.2d 407 (Conn. 2008),
the opponents of same-gender marriages
argued that same-gender couples are not
similarly situated to opposite-gender
couples because same-gender couples seek
to marry someone of the same sex, unlike
opposite-gender couples. Id. at 423-24. The
Connecticut Supreme Court rejected this
argument, noting that other than wanting to marry someone of the same sex,
same-gender couples otherwise meet all of
the eligibility requirements for marriage,
including the public safety requirements
of age and consanguinity. Id. at 424. In
addition, same-gender couples “share the
same interest in a committed and loving
relationship as heterosexual persons who
wish to marry, and they share the same
interest in having a family and raising
their children in a loving and supportive
environment.” Id.
{38} The Iowa Supreme Court advanced
a similar rationale in recognizing that
same-gender couples are similarly situated
to opposite-gender couples.
Therefore, with respect to the
subject and purposes of Iowa’s
marriage laws, we find that the
plaintiffs are similarly situated
compared to heterosexual persons. Plaintiffs are in committed and loving relationships,
many raising families, just like
heterosexual couples. Moreover,
official recognition of their status
provides an institutional basis for
defining their fundamental relational rights and responsibilities,
just as it does for heterosexual
couples. Society benefits, for example, from providing same-sex
couples a stable framework with-
in which to raise their children
and the power to make health
care and end-of-life decisions for
loved ones, just as it does when
that framework is provided for
opposite-sex couples.
Varnum v. Brien, 763 N.W.2d 862, 883
(Iowa 2009). We are persuaded that the
same analysis applies to same-gender
couples in New Mexico who want to get
married. Having concluded that samegender and opposite-gender couples who
want to marry are similarly situated, we
next consider the level of scrutiny to apply.
Intermediate scrutiny applies because
the legislation at issue affects a
sensitive class
{39} Three potential levels of scrutiny
are available under an equal protection
challenge. First, if the statutes treat a suspect class differently, the least deferential
standard of review, strict scrutiny, applies,
and the burden is on the party supporting
the statutes to prove that the legislation
furthers a compelling state interest. Breen,
2005-NMSC-028, ¶ 12. Second, if the
statutes treat differently a sensitive class
such as persons with a mental disability,
an intermediate standard of review applies, which requires the party supporting
the statutes to prove that the legislation is
substantially related to an important governmental interest. Id. ¶ 28. Third, if the
statutes in question are social or economic
legislation that do not treat a suspect or
sensitive class differently, the most deferential standard of review, rational basis,
applies, and the burden is on the party
challenging the statutes to prove that the
legislation is not rationally related to a
legitimate governmental purpose. Id. ¶ 11.
{40} Plaintiffs contend that strict scrutiny
should be applied to their equal protection
challenge because prohibiting their marriages denies same-gender couples rights
based on their sex. They cite NARAL,
1999-NMSC-005, ¶ 43, to support their
argument that New Mexico legislation
which creates gender-based classifications
must have a “compelling justification” to
satisfy the Equal Rights Amendment to
Article II, Section 18 of the New Mexico
Constitution.
{41} We do not agree that the marriage
statutes at issue create a classification
based on sex. Plaintiffs have conflated sex
and sexual orientation. The distinction
between same-gender and opposite-gender couples in the challenged legislation
does not result in the unequal treatment
of men and women. On the contrary,
Advance Opinions
persons of either gender are treated
equally in that they are each permitted
to marry only a person of the opposite
gender. The classification at issue is
more properly analyzed as differential
treatment based upon a person’s sexual
orientation.
{42} The New Mexico Human Rights Act
(NMHRA), NMSA 1978, §§ 28-1-1 to -15
(1953, as amended through 2007), was
amended in 2003 to add “sexual orientation” as a class of persons protected from
discriminatory treatment. 2003 N.M.
Laws, ch. 383, § 2. “Sex” had already been
a protected class. 2001 N.M. Laws, ch.
347, § 1. “Sexual orientation” is defined in
the NMHRA as “heterosexuality, homosexuality or bisexuality, whether actual or
perceived.” Section 28-1-2(P). In this case,
we are concerned with those individuals
who want to marry someone of the same
gender, whether they are homosexual, bisexual, or transgender. Other New Mexico
legislation offers protection based on
sexual orientation as well as gender. See
NMSA 1978, § 29-21-2 (2009) (prohibiting profiling by law enforcement officers
on the basis of sexual orientation as well
as other characteristics); NMSA 1978,
§ 31-18B-2(D) (2007) (including sexual
orientation as a protected status under
the Hate Crimes Act, NMSA 1978, §§ 3118B-1 to -5 (2003, as amended 2007)). The
need to add “sexual orientation” to these
statutes would have been unnecessary if
“sex” as a protected class encompassed
an individual’s sexual orientation. See
Simonton v. Runyon, 232 F.3d 33, 35 (2d
Cir. 2000) (“Congress’s refusal to expand
the reach of Title VII is strong evidence
of congressional intent in the face of
consistent judicial decisions refusing to
interpret ‘sex’ to include sexual orientation.”).
{43} Many courts that have considered
the issue have applied the equal protection analysis in same-gender marriage
cases based upon sexual orientation, not
gender. See In re Marriage Cases, 183
P.3d at 436-40 (declining to analyze the
equal protection challenge on the basis
of sex because the distinct class is more
properly viewed as being based on sexual
orientation); Hernandez v. Robles, 855
N.E.2d 1, 10-11 (N.Y. 2006) (same); see
also Lewis v. Harris, 908 A.2d 196, 212-16
(N.J. 2006) (evaluating equal protection
challenge in a same-gender marriage
case on the basis of sexual orientation).
Our analysis of sex discrimination cases
has been gender-based, scrutinizing the
historical discrimination against women.
NARAL, 1999-NMSC-005, ¶¶ 36, 41, 47.
For these reasons, we conclude that in
a case involving same-gender marriage,
the equal protection challenge should
not be analyzed as a case involving sex
discrimination, but must be analyzed as
a case involving discrimination based on
a person’s sexual orientation.
Classification on the basis of sexual
orientation requires intermediate
scrutiny
{44} Plaintiffs contend that even if
the classification at issue is based on
an individual’s sexual orientation, such
a classification should be treated as a
suspect classification requiring strict
scrutiny. A suspect class is “a discrete
group ‘saddled with such disabilities, or
subjected to such a history of purposeful
unequal treatment, or relegated to such
a position of political powerlessness as
to command extraordinary protection
from the majoritarian political process.’”
Richardson v. Carnegie Library Rest.,
Inc., 1988-NMSC-084, ¶ 27, 107 N.M.
688, 763 P.2d 1153 (quoting San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S.
1, 28 (1973), overruled on other grounds
by Trujillo v. City of Albuquerque, 1998NMSC-031, ¶ 36, 125 N.M. 721, 965 P.2d
305). Race, national origin, and alienage
are considered suspect classifications.
Richardson, 1988-NMSC-084, ¶ 27. In
addition, we have treated gender-based
statutory classifications as suspect. See
NARAL, 1999-NMSC-005, ¶ 27.
{45} In NARAL, we acknowledged that
federal courts have analyzed gender
discrimination cases by applying intermediate scrutiny, but we chose to apply a
greater level of scrutiny. Id. ¶ 37. We held
that legislation which involved genderbased classifications would be presumed
to be unconstitutional, and the government would have the burden of establishing a compelling justification for the
legislation. Id. ¶¶ 36, 43. A key rationale
for applying strict scrutiny was the 1973
addition of the Equal Rights Amendment to Article II, Section 18 of the New
Mexico Constitution, which added the
language “[e]quality of rights under law
shall not be denied on account of the sex
of any person.” See NARAL, 1999-NMSC005, ¶ 29. Before this addition, Article II,
Section 18 had only the language “[n]o
person shall be deprived of life, liberty or
property without due process of law; nor
shall any person be denied equal protection of the laws.” N.M. Const. art. II, §
18 (1972). We concluded that to honor
the intent of the citizens of New Mexico
to expand the guarantees of our Equal
Protection Clause, we were obligated to
apply a level of scrutiny greater than the
one that was being applied by federal
courts, particularly because the United
States Constitution does not have a
counterpart to New Mexico’s Equal Rights
Amendment. NARAL, 1999-NMSC-005,
¶¶ 29, 37 (quoting Op. of the Justices to the
House of Representatives, 371 N.E.2d 426,
428 (Mass. 1977) (“ ‘To use a standard
. . . which requires any less than the strict
scrutiny test would negate the purpose
of the equal rights amendment and the
intention of the people in adopting it.’ ”)).
{46} Another key rationale for applying strict scrutiny to gender-based classifications was the history of invidious
discrimination against women, including
restrictions on their rights to vote, hold
public office, NARAL, 1999-NMSC-005,
¶¶ 32-34, and other “early laws [that] continued to reflect the common-law view
‘that women were incapable mentally
of exercising judgment and discretion
and were classed with children, lunatics,
idiots, and aliens insofar as their political
rights were concerned.’” Id. ¶ 34 (quoting
State v. Chaves de Armijo, 1914-NMSC021, ¶ 27, 18 N.M. 646, 140 P. 1123). We
credited the Equal Rights Amendment
with causing the amendment and repeal
of many of these laws. NARAL, 1999NMSC-005, ¶ 35. Based on this analysis,
we concluded that the “Equal Rights
Amendment is a specific prohibition
that provides a legal remedy for the invidious consequences of . . . gender-based
discrimination,” and therefore “requires
a searching judicial inquiry concerning
state laws that employ gender-based
classifications.” Id. ¶ 36.
{47} In this case, the issue we must
decide is whether a classification based
on an individual’s sexual orientation
parallels classifications based on gender,
race, national origin, and alienage, and
whether it should therefore be treated as
a suspect classification. The opponents of
same-gender marriage argue that samegender couples are not even a sensitive
class because same-gender couples “possess political power that vastly exceeds
their small percentage of the population,”
and therefore, if they do not qualify as a
sensitive class, they cannot be considered
a suspect class. These opponents illustrate
the political power of same-gender couples
by pointing to achievements that they have
31
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attained with respect to same-gender marriages7:
The Democratic Party has included redefining marriage in
its official party platform. See
Platform Standing Comm., 2012
Democratic Nat’l Convention
Comm., Moving America Forward . . . 18 (2012), available
at http://www.democrats.org/
democratic-national-platform.
The President and his administration support same-sex marriage.
See Josh Earnest, President Obama
Supports Same-Sex Marriage, The
White House Blog (May 10, 2012,
7:31 PM), http://www.whitehouse.gov/blog/2012/05/10/
obama-supports-same-sex-marriage. [http://assets.dstatic.org/
dnc-platform/2012-NationalPlatform.pdf.]
During the last five years, legislatures in seven United States
jurisdictions—New Hampshire,
Vermont, New York, the District
of Columbia, Minnesota, Delaware, and Rhode Island—have
voted to redefine marriage. See
Defining Marriage: Defense of
Marriage Acts and Same-Sex Marriage Laws, National Conference
of State Legislatures ([current
on] July 26, 2013), http://www.
ncsl.org/issues-research/humanservices/same-sex-marriageoverview.aspx.
Last year, the citizens of three
States—Maine, Maryland, and
Washington—decided to redefine
marriage through a direct vote of
the people. See Richard Socarides,
Obama and Gay Marriage: One
Year Later, The New Yorker (May
6, 2013), http://newyorker.com/
online/blogs/newsdesk/2013/05/
obama-and-gay-marriage-oneyear-later.html.
{48} Focusing on the political powerlessness prong is a reasonable strategy for
the opponents of same-gender marriage
because whether same-gender couples (the
LGBT community) are a discrete group
who have been subjected to a history of
purposeful unequal treatment is not fairly
debatable. Until 1975, consensual sexual
intimacy between persons of the same gender was prohibited and actively prosecuted
in New Mexico courts under anti-sodomy
laws. See NMSA 1953, § 40A-9-61 (1963)
((Vol. 6, 2d Repl. Pamp.), repealed, Laws
1975, ch. 109, § 8). Convictions for sodomy
in New Mexico were upheld despite constitutional challenges to these laws. See State
v. Elliott, 1976-NMSC-030, ¶ 9, 89 N.M.
305, 551 P.2d 1352 (reversing the Court
of Appeals insofar as it held the sodomy
statute unconstitutional). However, perhaps more importantly, as we previously
noted in paragraph 42, supra, New Mexico
has recently enacted legislation to prohibit
discrimination against individuals based
upon their sexual orientation, 2003 N.M.
Laws, ch. 383, § 2; enacted legislation to
prohibit law enforcement officers from
profiling individuals based on their sexual
orientation, § 29-21-2; and added sexual
orientation as a protected class under hate
crimes legislation, § 31-18B-2(D). None of
this legislation would have been required
if the LGBT community was not a discrete
group which has experienced a history of
purposeful unequal treatment and acts of
violence.
{49} Refocusing on the contention that
the LGBT community is not politically
powerless, we recognize that they have
had some recent political success regarding legislation prohibiting discrimination
against them. However, we also conclude
that effective advocacy for the LGBT
community is seriously hindered by their
continuing need to overcome the already
deep-rooted prejudice against their integration into society, which warrants our
application of intermediate scrutiny in
this case. See Breen, 2005-NMSC-028,
¶¶ 28-29 (applying intermediate scrutiny
to legislation adversely affecting persons
with mental disabilities because their
political advocacy remains seriously hindered despite their gains in society). The
political advocacy of the LGBT community continues to be seriously hindered, as
evidenced by the uncontroverted difficulty
in determining whether LGBTs are underrepresented in positions of political power,
because many of them keep their sexual
orientation private to avoid hostility, discrimination, and ongoing acts of violence.
See Richard M. Valelly, LGBT Politics and
American Political Development, Annu.
Rev. Polit. Sci. 2012. 15:313-32 (2012). FBI
statistics show that the rates of hate crimes
committed against individuals based on
sexual orientation have remained relatively constant over the past two decades,
although they have risen slightly in the
past few years, both in absolute numbers
and expressed as a percentage of all types
of hate crimes. Fed. Bureau of Investigation, Uniform Crime Reports: Hate Crime
Statistics 1996 through 2012, available
at http://www.fbi.gov/about-us/cjis/ucr/
ucr-publications. It is reasonable to expect
that the need of LGBTs to keep their sexual
orientation private also hinders or suppresses their political activity. See Windsor
v. United States, 699 F.3d 169, 184-85 (2d
Cir. 2012) (“their position ‘has improved
markedly in recent decades,’ but they still
‘face pervasive, although at times more
subtle, discrimination . . . in the political
arena.’” (quoting Frontiero v. Richardson,
411 U.S. 677, 685-86 (1973)).
{50} Although the LGBT community has
had political success, they have also seen
their gains repealed by popular referendums. Romer v. Evans, 517 U.S. 620 (1996)
and In re Marriage Cases provide two good
examples. In Romer, numerous municipalities in Colorado enacted ordinances
that prohibited discrimination against
gays and lesbians in housing, employment,
education, public accommodations, and
health and welfare services. 517 U.S. at
623-24. In response to the enactment of
such ordinances, the voters of Colorado
amended the Colorado Constitution to
preclude the three branches of government
at any level of state or local government
from protecting gays and lesbians against
discrimination. C.R.S.A. Const. art. 2, §
30b; Romer, 517 U.S. at 624. The constitutional amendment adopted by the voters
reads:
No Protected Status Based on
Homosexual, Lesbian or Bisexual
Orientation. Neither the State
of Colorado, through any of its
branches or departments, nor any
7 “[T]his Court—or any court, trial or appellate—may take judicial notice of legislative facts by resorting to whatever materials it may have at its disposal establishing or tending to establish those facts.” Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009,
¶¶ 26, 25-28, 147 N.M. 583, 227 P.3d 73 (citing Trujillo v. City of Albuquerque, 1990-NMSC-083, ¶ 55, 110 N.M. 621, 798 P.2d 571
(Montgomery, J., concurring in part, dissenting in part) (Trujillo I)), overruled in later appeal on other grounds by Trujillo v. City of
Albuquerque, 1998-NMSC-031, ¶ 36 (Trujillo II).
32
Advance Opinions
of its agencies, political subdivisions, municipalities or school
districts, shall enact, adopt or
enforce any statute, regulation,
ordinance or policy whereby
homosexual, lesbian or bisexual
orientation, conduct, practices or
relationships shall constitute or
otherwise be the basis of or entitle
any person or class of persons to
have or claim any minority status, quota preferences, protected
status or claim of discrimination.
Id. (internal quotation marks omitted). In
Romer, the United States Supreme Court
invalidated the Colorado constitutional
amendment because it violated the Equal
Protection Clause of the United States
Constitution. Id. at 632-33. California
provides another example. After the California Supreme Court filed its opinion in
In re Marriage Cases, California voters
passed Proposition 8, which amended
the California Constitution to provide
that “‘[o]nly marriage between a man
and a woman is valid or recognized in
California.’” Cal. Const., Art. I, § 7.5; Hollingsworth v. Perry, ___ U.S. ___, ___, 133
S. Ct. 2652, 2659 (2013).
{51} At the time this case was argued in
October 2013, only a minority of states had
enacted laws identifying “sexual orientation” as a protected class for purposes of
anti-discrimination laws.8 Only six states
had recognized the validity of and enacted
legislation permitting same-gender marriages, or civil unions, at the time this
opinion was filed: Delaware, 79 Del. Laws
ch. 19 (2013); Minnesota, 2013 Minn. Sess.
Law Serv. 74 (West); New Hampshire, 2009
N.H. Laws 60-66; New York, N.Y. Dom.
Rel. Law § 10-a (Consol. 2011); Rhode
Island, R.I. Gen. Laws § 15-1-1 (2013);
and Vermont, 2009 Vt. Acts & Resolves
3. Four states, Massachusetts, California,
Iowa, and Connecticut, interpreted their
respective constitutions to require samegender marriages. See In re Marriage
Cases, 183 P.3d at 452; Kerrigan, 957 A.2d
at 482; Varnum, 763 N.W.2d at 904; Goodridge, 798 N.E.2d at 968. In three states,
Maine, Maryland, and Washington, the
electorate voted in favor of same-gender
marriages. Ashley Fetters, Same-Sex Marriage Wins on the Ballot for the First Time
in American History, theatlantic.com
(Nov. 7, 2012), http://www.theatlantic.
com/ sexes/archive/2012/11/same-sexmarriage-wins-on-the-ballot-for-the-firsttime-in-american-history/264704/ (listing
the wording of each ballot proposal).
Finally, three states, New Jersey, Illinois,
and Colorado, have legislation that grants
same-gender couples an alternative to
civil marriage and makes available to them
many of the benefits granted to married
couples. See Colo. Rev. Stat. §§ 14-15-102
to -119 (2013); 750 Ill. Comp. Stat. 75/1 to
75/90 (2011); N.J. Stat. Ann. 37:1-28 to -36
(2006).9 The history we have just recounted
demonstrates that the members of the
LGBT community do not have sufficient
political strength to protect themselves
from purposeful discrimination.
{52} To complete the analysis of whether
intermediate scrutiny should apply, we
must answer whether members of the
LGBT community have been subjected to
a history of discrimination and political
powerlessness based on a characteristic
that is relatively beyond their control.
Breen, 2005-NMSC-028, ¶ 21. This requirement cannot mean that the individual
must be completely unable to change the
characteristic. See In re Marriage Cases,
183 P.3d at 442 (recognizing that other
classifications such as religion and alienage that receive heightened scrutiny do so
despite the fact that individuals can change
their religion or become citizens); Varnum,
763 N.W.2d at 893 (“The constitutional
relevance of the immutability factor is
not reserved to those instances in which
the trait defining the burdened class is
absolutely impossible to change.”). Instead,
the question is whether the characteristic is
so integral to the individual’s identity that,
even if he or she could change it, would it
be inappropriate to require him or her to
do so in order to avoid discrimination?
We agree with those jurisdictions which
have answered this question affirmatively
regarding LGBTs. See Kerrigan, 957 A.2d at
438-39 (holding that gays and lesbians are
entitled to consideration as a quasi-suspect
class because “they are characterized by
a central, defining [trait] of personhood,
which may be altered [if at all] only at the
expense of significant damage to the individual’s sense of self ”) (internal quotation
marks and citation omitted); see also In re
Marriage Cases, 183 P.3d at 442 (“Because
a person’s sexual orientation is so integral
an aspect of one’s identity, it is not appropriate to require a person to repudiate
or change his or her sexual orientation in
order to avoid discriminatory treatment.”);
Varnum, 763 N.W.2d at 893 (same).
{53} Therefore, we conclude that intermediate scrutiny must be applied in this
case because the LGBT community is a
discrete group that has been subjected to a
history of purposeful discrimination, and
it has not had sufficient political strength to
protect itself from such discrimination. As
we noted in Breen, to apply intermediate
scrutiny, the class adversely affected by the
legislation does not need to be “completely
politically powerless, but must be limited
in its political power or ability to advocate
within the political system.” 2005-NMSC028, ¶ 18. Nor does intermediate scrutiny
require the same level of extraordinary
protection from the majoritarian political
process that strict scrutiny demands. Id. It
is appropriate for our courts to apply intermediate scrutiny, “even though the darkest
period of discrimination may have passed
for a historically maligned group.” Id. ¶ 20.
Our decision to apply intermediate scrutiny is consistent with many jurisdictions
which have considered the issue. Windsor
v. United States, 699 F.3d at 185; Kerrigan,
957 A.2d at 475-76; Varnum, 763 N.W.2d
at 896.
It is unclear whether the right to marry
is a fundamental right requiring strict
scrutiny
{54} Before we proceed to analyze the
legislation under intermediate scrutiny,
we must address Plaintiffs’ argument that
a strict scrutiny level of review is required
because an individual’s right to marry the
person of his or her choice is a fundamental right. The opponents of same-gender
marriage respond to Plaintiffs’ argument
by redefining the right pursued by Plaintiffs as being the right to marry a person
of the same gender. They contend that the
right to marry someone of the same gender
is not a fundamental right because it is not
deeply rooted in New Mexico history and
tradition, nor is it an important constitutional right because no state constitutional provision guarantees such a right.
8 Twenty state civil or human rights acts prohibit discrimination against consumers based on their sexual orientation. See Justin
Muehlmeyer, Toward a New Age of Consumer Access Rights: Creating Space in the Public Accommodation for the LGBT Community,
19 Cardozo J.L. & Gender 781, 782 n.11 (Spring 2013).
9 Held unconstitutional by Garden State Equal. v. Dow, ___ A.3d at ___, 2013 WL 5687193, at *2. See n.6, supra.
33
Advance Opinions
We conclude that the correct question is
whether the right to marry is a fundamental right requiring strict scrutiny, which
is a question that has not been answered
by the United States Supreme Court. For
the following reasons, we determine that
we do not need to definitively answer this
difficult question.
{55} Civil marriage is considered to be
a civil right. See, e.g., Loving, 388 U.S. at
12 (“Marriage is one of the ‘basic civil
rights of man,’ fundamental to our very
existence and survival.”) (quoting Skinner
v. State of Oklahoma ex rel. Williamson,
316 U.S. 535, 541 (1942)). The United
States Supreme Court also has described
the right to marry as “of fundamental
importance for all individuals” and as
“part of the fundamental ‘right of privacy’
implicit in the Fourteenth Amendment’s
Due Process Clause.” Zablocki v. Redhail,
434 U.S. 374, 384 (1978); see also Loving,
388 U.S. at 12 (“The freedom to marry has
long been recognized as one of the vital
personal rights essential to the orderly
pursuit of happiness by free men.”). When
fundamental rights are affected by legislation, the United States Supreme Court has
applied strict scrutiny when determining
whether the legislation is constitutional.
Clark v. Jeter, 486 U.S. 456, 461 (1988).
However, regarding marriage, the United
States Supreme Court does not demand
“that every state regulation which relates in
any way to the incidents of or prerequisites
for marriage must be subjected to rigorous
scrutiny.” Zablocki, 434 U.S. at 386. For example, in Turner v. Safley, 482 U.S. 78, 81,
95-97 (1987), the Supreme Court rejected
the lower court’s application of strict scrutiny to a prisoner’s right to marry, noting
that the prisoner’s fundamental right to
marry, “like many other rights, is subject
to substantial restrictions as a result of
incarceration.” Id. at 95. In United States
v. Windsor, the Supreme Court left unanswered the level of scrutiny it was applying
to same-gender marriages. ___ U.S. at ___,
133 S. Ct. at 2706 (Scalia, J., dissenting,
noting that the majority “does not apply
strict scrutiny, and its central propositions
are taken from rational-basis cases”). We
conclude from the United States Supreme
Court’s equivocation in these cases that
whether the right to marry is a fundamental right requiring strict scrutiny is
a question that remains unanswered. We
do not need to answer this question here
because Plaintiffs prevail when we apply
an intermediate scrutiny level of review
under an equal protection analysis.
34
Denying same-gender couples the right
to marry and all of the rights,
protections, and responsibilities
available under state and federal law
does not survive intermediate scrutiny
{56} We will uphold the statutes at
issue in this case if the opponents of
same-gender marriage can prove that
denying same-gender couples the right to
marry—with all of its attendant statutory
rights, protections, and responsibilities—
is substantially related to an important
governmental interest. See Breen, 2005NMSC-028, ¶ 30. Once the governmental
interest is identified, we must balance that
interest against the burdens placed on the
sensitive class compared to others who are
similarly situated. Id. ¶ 31. We consider
whether the legislation is over- or underinclusive in its application, and attempt to
determine whether the legislation is the
least restrictive alternative for protecting
the important governmental interest. Id. ¶
32.
{57} We have interpreted the argument
of the opponents of same-gender marriage as suggesting that there are three
governmental interests for prohibiting
same-gender couples from marrying in the
State of New Mexico. First, they argue that
the governmental interest in promoting
responsible procreation justifies the samegender marriage prohibition. Second, they
argue that the governmental interest in responsible child rearing justifies depriving
same-gender couples who marry from the
benefits and protections of marriage laws.
Third, they suggest that allowing samegender couples to marry will result in the
deinstitutionalization of marriage because
people will spend a smaller proportion of
their adult lives in intact marriages than
they have in the past. During oral argument, opponents admitted that they lacked
evidence to show that allowing samegender marriages would result in married
couples divorcing at an increased rate.
Because this contention is not supported
by the evidence in the record, the contention is without merit. See Wagner v. AGW
Consultants, 2005-NMSC-016, ¶ 24, 137
N.M. 734, 114 P.3d 1050 (the party with the
burden of proof in a constitutional challenge must support his or her argument
with a “firm legal rationale” or evidence
in the record (internal quotation marks
and citation omitted)). To the extent that
the deinstitutionalization argument was
intended to inject into the analysis moral
disapprobation of homosexual activity and
tradition—that marriage has traditionally
been between a man and a woman—both
justifications have been rejected.
{58}In Lawrence v. Texas, 539 U.S. 558,
582 (2003), the United States Supreme
Court made it clear that it has “never held
that moral disapproval, without any other
asserted state interest, is a sufficient rationale under the Equal Protection Clause
to justify a law that discriminates among
groups of persons.” It is not appropriate to
define the State’s interest as maintaining
the tradition of marriage only between
opposite-gender couples, any more than it
was appropriate to define the state’s interest
in Loving, 388 U.S. at 12, as only maintaining same-race marriages. Articulating
the governmental interest as maintaining
the tradition of excluding same-gender
marriages because “the ‘historic and
cultural understanding of marriage’ has
been between a man and a woman—cannot in itself provide a [sufficient] basis for
the challenged exclusion. To say that the
discrimination is ‘traditional’ is to say only
that the discrimination has existed for a
long time.” Kerrigan, 957 A.2d at 478.
{59} We are left to decide whether prohibiting same-gender marriage with all
of its attendant rights, protections, and
responsibilities is substantially related to
the purported important governmental
interests in “responsible procreation and
child-rearing,” which we have already indicated are not supported in the history of
New Mexico’s marriage legislation. It is the
marriage partners’ exclusive and permanent commitment to one another and the
State’s interest in their stable relationship
that are indispensable requisites of a civil
marriage.
{60} We separately consider the purported governmental interests in responsible
procreation and responsible child rearing.
Regarding responsible procreation, we fail
to see how forbidding same-gender marriages will result in the marriages of more
opposite-gender couples for the purpose of
procreating, or how authorizing same-gender marriages will result in the marriages
of fewer opposite-gender couples for the
purpose of procreating. The discriminatory classification is also glaringly underinclusive. Discriminatory legislation is
under-inclusive if the classification does
not include all of those who are similarly
situated with respect to the purpose of
the law. Dandridge v. Williams, 397 U.S.
471, 529 (1970) (Marshall, J., dissenting).
Regarding the purported legislative goal
of responsible procreation, the legislation
is under-inclusive because the statutes do
Advance Opinions
not prohibit opposite-gender couples from
marrying, even if they do not procreate because of age, physical disability, infertility,
or choice.10 Finally, although it is not clear
what the opponents of same-gender marriage mean by “responsible procreation,”
when childless same-gender couples decide to have children, they necessarily do
so after careful thought and considerable
expense, because for them to raise a family
requires either lengthy and intrusive adoption procedures or assistive reproduction.
{61} Same-gender couples are as capable
of responsible procreation as are oppositegender couples. We conclude that there is
not a substantial relationship between New
Mexico marriage laws and the purported
governmental interest in responsible procreation.
{62} The final issue is whether denying
the rights and protections of federal and
state laws to same-gender couples who
want to marry and have families by adoption or assisted reproduction furthers the
State’s purported interest in promoting
responsible child rearing. In this case,
no one denies that LGBT individuals are
fully capable of entering into the kind of
loving and committed relationships that
serve as the foundation for families, or
that they are capable of responsibly caring
for and raising children. The 2010 United
States Census reported that at that time,
there were 111,033 households headed
by same-gender couples with their own
children residing in their households,
and that of those households, 1,038 were
in New Mexico. United States Census
2010 and 2010 American Community
Survey, Same-Sex Unmarried Partner or
Spouse Households by Sex of Householder
by Presence of Own Children, available at
http://www.census.gov/hhes/samesex/
files/supp-table-AFF.xls. The New Mexico
Court of Appeals has held that “a person’s
sexual orientation does not automatically
render the person unfit to have custody of
children.” A.C. v. C.B., 1992-NMCA-012, ¶
19, 113 N.M. 581, 829 P.2d 660. This Court
has held that same-gender couples have
custody rights to children under the New
Mexico Uniform Parentage Act, NMSA
1978, §§ 40-11A-101 to -903 (2009), because, among other reasons, “it is against
public policy to deny parental rights and
responsibilities based solely on the sex of
either or both of the parents.” Chatterjee,
2012-NMSC-019, ¶¶ 5, 37. The American
Psychological Association, which filed a
brief amicus curiae in this case, cites to
studies indicating that there is no scientific
evidence that parenting effectiveness is related to the parents’ sexual orientation. See
M.E. Lamb, Mothers, Fathers, Families, and
Circumstances: Factors Affecting Children’s
Adjustment, 16 Applied Developmental
Sci. 98-111 (2012); M.E. Lamb & C. Lewis,
The Role of Parent-Child Relationships in
Child Development, in Developmental Science: An Advanced Textbook 429-68 (M.H.
Bornstein & M.E. Lamb eds., 5th ed. 2005);
C.J. Patterson & P.D. Hastings, Socialization in the Context of Family Diversity, in
Handbook of Socialization: Theory and
Research 328-51 (J.E. Grusec & P.D. Hastings eds., 2007).
{63} We need not go further than the
record in this case for persuasive evidence
that same-gender parents are responsible
parents. As we have previously discussed,
many of the Plaintiffs in this case have
been in long-term, committed relationships, and many of them are raising or
have raised children and grandchildren.
Plaintiffs Miriam and Ona have been in
a committed relationship for twenty-five
years and have raised three children and
one grandchild. Plaintiffs A.D. and Greg
have been in a committed relationship for
seven years and have raised a foster child
together. Plaintiffs Monica and Cecilia
fifteen years and have raised three daughters together. Plaintiffs Jen and Angelique
twenty-one years and have raised three
adopted sons together, one of whom is
serving our country as an enlisted soldier
in the United States Army.
{64} We fail to see how depriving committed same-gender couples, who want
to marry and raise families, of federal
and state marital benefits and protections
will result in responsible child rearing by
heterosexual married couples. In the final
analysis, child rearing for same-gender
couples is made more difficult by denying them the status of being married and
depriving them of the rights, protections,
and responsibilities that come with civil
marriage. Innumerable statutory benefits
and protections inure to the benefit of
a married couple. We have identified
several relating to community property
rights in this opinion. See §§ 40-3-7 to -17
(1975) (addressing the property rights of
“husband and wife”). The New Mexico
Probate Code contains other benefits
and protections. See NMSA 1978, § 45-2807(a) (1975, as amended through 1993)
(one-half of the community property goes
to the surviving spouse); NMSA 1978,
§ 45-3-203(A)(2) (1975, as amended
through 2011) (granting priority of the
appointment as personal representative
to the surviving spouse if the decedent
did not nominate a personal representative or exclude the surviving spouse as
a devisee). Married persons are granted
property exemptions from creditors, receivers, or trustees to preserve essential
resources and a home for the family. See
NMSA 1978, §§ 42-10-1 to -13 (1887, as
amended through 2007) (listing types of
exemptions). Wrongful death damages
are allocated to a surviving spouse when a
tortfeasor causes the death of a spouse. See
NMSA 1978, § 41-2-3(A) (1882, as amended through 2001) (allocating wrongful
death damages to the surviving spouse). A
spouse has priority to make healthcare and
end-of-life decisions for an incapacitated
spouse, NMSA 1978, § 24-7A-1(G) (1995,
as amended through 2009), by virtue of
being a spouse, NMSA 1978, § 24-7A-5(B)
(1) (1995, amended 1997). Conversely,
a member of an unmarried couple must
establish the quality and quantity of the
relationship with his or her incapacitated
partner—issues that frequently become
contentious—before he or she can make
healthcare and end-of-life decisions on
behalf of the incapacitated partner. See §
24-7A-5(B)(2) (“[A]n individual in a longterm relationship of indefinite duration
with the patient” may act as a surrogate to
make healthcare decisions for the patient.).
{65} Children are also both directly and
indirectly the beneficiaries of the statutory benefits and protections available to
a married couple. Children benefit from
the presumption of legitimacy when they
10 It is doubtful that the government could preclude any couple from marrying because they are unwilling or unable to procreate.
See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If the right of privacy means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether
to bear or beget a child.”).
35
Advance Opinions
are born to a married couple. Section
40-11A-204(A). In the event of separation
or divorce, children benefit from orderly
child custody proceedings, § 40-4-9; child
support, § 40-4-11; joint custody, § 40-49.1(B); and the important doctrine which
requires courts to consider the best interests of the child. In addition, as we noted
in Chatterjee, the best interests of a child
do not depend on a parent’s sexual orientation or marital status. 2012-NMSC-019, ¶¶
34-37.
{66} We have not attempted to provide an
exhaustive list of the statutory rights and
protections available to a married couple,
but the essence of many of the statutes that
we have identified is to assist with the stability of the relationship and the safeguarding
of important collective resources. The burdens on same-gender couples who want to
marry and who are deprived of federal and
state benefits and protections, compared
to opposite-gender couples who want to
marry and are therefore eligible for federal
and state benefits and protections, is readily apparent and, if same-gender marriages
are not legally permitted, inequitable. The
enhanced income and the laws that create
financial security for married couples are
important sources of stability for a family
bonded by marriage. This is evident not
only during end-of-life circumstances, but
also in the event of a separation or divorce.
By denying same-gender couples the right
to marry, the Legislature also deprives them
of the protections of New Mexico divorce
laws. Instead, same-gender couples and
their children are forced into courts of
equity without the benefit of property division laws, child support, child custody, and
visitation laws that minimize uncertainty
for the family unit.
36
{67} Excluding same-gender couples
from civil marriage prevents children of
same-gender couples from enjoying the
security that flows from the rights, protections, and responsibilities that accompany
civil marriage. There is no substantial relationship between New Mexico’s marriage
laws and the purported governmental
interest of responsible child rearing. There
is nothing rational about a law that penalizes children by depriving them of state
and federal benefits because the government disapproves of their parents’ sexual
orientation.
{68} We invited the active participation
in this case of amici curiae to ensure that
the important issues before us were properly and thoroughly briefed and argued to
this Court. The parties and amici have had
ample opportunity to articulate a constitutionally adequate justification for limiting
marriage to opposite-gender couples. The
supposed justifications for the discriminatory legal classification are categorically at
odds with the comprehensive legislative
scheme that is intended to promote stable
families and protect the best interests of
children. Denying same-gender couples
the right to marry and thus depriving
them and their families of the rights,
protections, and responsibilities of civil
marriage violates the equality demanded
by the Equal Protection Clause of the New
Mexico Constitution.
Remedy
{69} Having declared the New Mexico
marriage laws unconstitutional, we now
determine the appropriate remedy. We
decline to strike down our marriage
laws because doing so would be wholly
inconsistent with the historical legislative
commitment to fostering stable families
through these marriage laws. Instead,
“civil marriage” shall be construed to
mean the voluntary union of two persons
to the exclusion of all others. In addition,
all rights, protections, and responsibilities
that result from the marital relationship
shall apply equally to both same-gender
and opposite-gender married couples.
Therefore, whether they are contained in
NMSA 1978, Chapter 40 or any other New
Mexico statutes, rules, regulations, or the
common law, whenever reference is made
to marriage, husband, wife, spouse, family,
immediate family, dependent, next of kin,
widow, widower or any other word, which,
in context, denotes a marital relationship, the same shall apply to same-gender
couples who choose to marry.
{70} With respect to the forms required
by Section 40-1-18, gender-neutral language shall be utilized by the Clerks.
Section 40-1-17 states that “the form of
application, license and certificate shall
be substantially as provided in Section
40-1-18.” Therefore, to comply with the
New Mexico Constitution, gender-neutral
language shall be utilized in identifying the
applicants and spouses.
{71} We grant a writ of superintending
control and order the courts to mandate
compliance with the holdings and rationale of this opinion.
{72} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice
Advance Opinions
Opinion Number: 2014-NMSC-004
Topic Index:
Administrative Law: Hearings; Judicial Review; and Legislative Intent
Civil Procedure: Intervention
Corporations: Public Regulatory Commission
Government: Motor Carriers
Statutes: Interpretation; and Legislative Intent
ALBUQUERQUE CAB COMPANY and YELLOW CHECKER CAB COMPANY, INC.,
Appellants,
v.
NEW MEXICO PUBLIC REGULATION COMMISSION,
Appellee,
and
GREEN CAB, LLC, d/b/a GREEN CAB COMPANY,
Real Party in Interest
No. 33,704 (filed December 30, 2013)
APPEAL FROM THE NEW MEXICO PUBLIC REGULATION COMMISSION
FREDERICK M. MOWRER
SANCHEZ, MOWRER &
DESIDERIO, P.C.
for Appellants
Opinion
Richard C. Bosson, Justice
{1}The New Mexico Public Regulation
Commission (PRC) granted Green Cab,
LLC d/b/a Green Cab Co., (Green Cab)
a certificate of authority to provide taxi
service within Bernalillo County and to
the rest of the state. Albuquerque Cab Co.
(ABQ Cab) and Yellow Checker Cab (Yellow Cab), presently doing business in Bernalillo County, appeal under this Court’s
jurisdiction pursuant to the Motor Carrier
Act and our Rules of Appellate Procedure.
See NMSA 1978, § 65-2A-35(A) (2003)
(appeals from a final order may be taken
directly to the Supreme Court within thirty
days); see also Rule 12-102(A)(2) NMRA
(appeals from the PRC “shall be taken to
the Supreme Court”).
{2} ABQ Cab and Yellow Cab assert that the
PRC erred by: (1) not scheduling a hearing
on whether Green Cab should be issued a
certificate of authority, (2) denying their
motions to intervene as “interested persons”
in the Green Cab proceedings, (3) granting
Green Cab authority to operate a taxi service,
MARGARET KENDALL
CAFFEY-MOQUIN
for Appellee
(4) and finally, issuing Green Cab temporary
authority to operate a taxi service in Bernalillo County to all parts of the state. For the
reasons discussed below, we hold that the
PRC committed reversible error by not holding a public hearing in which ABQ Cab and
Yellow Cab could participate as intervenors,
contrary to the statutory requirements of the
Motor Carrier Act. Because the PRC did not
follow the required procedure, we need not
address the remaining arguments regarding
Green Cab’s temporary or permanent authority. Accordingly, we reverse and remand
to the PRC for further proceedings consistent
with this opinion.
BACKGROUND
{3} On May 18, 2011, Green Cab filed an
application for certificate and temporary
authority to operate a taxi service in Bernalillo County to all parts of New Mexico.
Employees of the PRC (PRC Staff) filed
notice of Green Cab’s application on May
24, mailed notice to authorized motor
carriers (including ABQ Cab and Yellow
Cab), and published notice in the Albuquerque Journal.
{4} On June 8, 2011, ABQ Cab and Yellow
Cab filed a protest and motion to intervene
in the matter of Green Cab’s certification.
A single PRC Commissioner, Theresa
Becenti-Aguilar, responded to the motion,
and citing as authority 1.2.2.30(B) NMAC
(09/01/08), issued an order that required
ABQ Cab and Yellow Cab to file a response
with supporting facts in “sufficient detail”
to “support the allegation that granting . . .
temporary authority or a certificate would
adversely impact their ability to continue
to provide transportation services in the
future.” ABQ Cab and Yellow Cab were
also asked to include any allegations that
could be described and supported with
sufficient factual detail “that [Green Cab]
did not meet one or more of the criteria
for issuance of the operating authority or
temporary authority.” Further, the Commissioner Becenti-Aguilar’s order stated
that “[f]ailure to comply . . . shall result in
the denial of the motion to intervene.”
{5} On July 11, 2011, ABQ Cab and Yellow
Cab filed their response, which included
some analysis regarding the effect of allowing additional competition into the taxi
cab market. PRC Staff opposed intervention, arguing that intervention “impose[d]
costs on the applicant and the public that
[Staff felt were] contrary to New Mexico’s
transportation policy,” and therefore, the
PRC “must require protestants to make
the showings required by NMSA [1978,
Section] 65-2A-13(C) [(2013)] before allowing them to intervene.”
{6}The PRC granted Green Cab conditional temporary authority on August 10,
2011, and in a separate order that same
day, appointed a hearing examiner based
on the “issues presented in the Motion
to Intervene.” Regarding PRC Staff ’s opposition, the order appointing a hearing
examiner observed, “[i]n the future, Staff
should request permission from the Commission to file such a brief.”
{7}On October 6, 2011, the appointed
hearing examiner filed an order allowing
ABQ Cab and Yellow Cab to respond to
PRC Staff ’s brief opposing intervention.
ABQ Cab and Yellow Cab filed their response on October 18, 2011. On February
7, 2012, the case was reassigned to a new
hearing examiner, Elizabeth C. Hurst. On
March 16, 2012, Hearing Examiner Hurst
denied the motion to intervene without a
hearing.
{8}The intervention denial was based
in part on Hearing Examiner Hurst’s
determination, again without a hearing,
that “Section 65A-2-13(C) [sic] does not
provide automatic intervention status for
any carrier who makes unsupported and
37
Advance Opinions
speculative claims in a case.” Hearing Examiner Hurst observed that the PRC is authorized to promulgate rules to implement
the Motor Carrier Act under NMSA 1978,
Section 65-2A-4 (2003, amended 2013),
and thus, the PRC created a rule requiring that interested parties must “provide
the Commission with credible, reliable,
or verified facts or details that would support their allegations” before intervention
may be granted. See 18.3.2.18(A) NMAC
(01/01/2005) (establishing that a motion to
intervene should provide sufficient factual
support for any allegation). Relying on the
rule, and the lack of sufficiently detailed
support for intervention, Hearing Examiner Hurst concluded that the motion to
intervene “should be denied.”
{9}Having denied intervention to ABQ
Cab and Yellow Cab, the hearing examiner
then granted PRC Staff ’s motion to process
Green Cab’s application as an uncontested
matter. Thereafter, without ever holding a
public hearing, the PRC adopted Hearing
Examiner Hurst’s April 20, 2012 recommendations and findings of fact, reassigned
Green Cab’s application as an uncontested
matter, and granted Green Cab a certificate
of authority. One PRC Commissioner, Jason Marks, dissented from the final order.
Although noting that the Motor Carrier
Act “plac[ed] inappropriate and unnecessary barriers to market entry,” Commissioner Marks nonetheless found that ABQ
Cab and Yellow Cab had met the statutory
requirements to intervene, and therefore,
should have been afforded a hearing to
determine “the impact of an application
on existing motor carriers.” This appeal
follows from the PRC’s final order.
DISCUSSION
{10} We have been down this road before in T-N-T Taxi v. New Mexico Public
Regulation Commission, 2006-NMSC-016,
139 N.M. 550, 135 P.3d 814, an opinion
we will discuss subsequently in more
detail. Again, we are called to review the
PRC’s construction of the Motor Carrier
Act. “The primary goal in interpreting a
statute is to give effect to the Legislature’s
intent.” T-N-T Taxi, 2006-NMSC-016, ¶ 5.
We look first to the Legislature’s language,
giving effect to the plain meaning of the
words used, unless doing so would lead
to absurdity, contradiction, or injustice.
Id. We review de novo an administrative
agency’s statutory construction and determination of legislative intent. Id. We turn
first to the then-applicable statutes, which
we observed in T-N-T Taxi are not a model
of clarity. See Id. ¶ 6.
38
{11} NMSA 1978, Section 65-2A-5(C)
(2003, amended 2013) provides that
“[t]he commission shall hold a public
hearing on an application whenever an
interested person protests the application
during the notice period . . . .” (Emphasis
added.) Under New Mexico’s codified
rules of statutory construction, “‘[s]hall’
. . . express[es] a duty, obligation, requirement, or condition precedent.” NMSA
1978, § 12-2A-4(A) (1997). Therefore, if
an interested person, as defined in the Act,
protests an application, the PRC must hold
a public hearing on the protested application. We said as much in T-N-T Taxi. See
T-N-T Taxi, 2006-NMSC-016, ¶ 8. The
PRC may not by regulation undercut that
which is required by statute. Jones v. Emp’t
Servs. Div. of Human Servs. Dep’t, 1980NMSC-120, ¶ 3, 95 N.M. 97, 619 P.2d. 542
(“An agency by regulation cannot overrule
a specific statute.”).
{12} The Motor Carrier Act defines an
“interested person” as “a motor carrier
operating over the routes or in the territory involved in an application or grant of
temporary authority . . . .” NMSA 1978, §
65-2A-3(T) (2007, amended 2013). Both
ABQ Cab and Yellow Cab operate as motor carriers in Bernalillo County, the same
territory in which Green Cab applied to
operate. Therefore, they are “interested persons.” As such, because the Motor Carrier
Act required a “public hearing on [Green
Cab’s] application whenever an interested
person protests,” ABQ Cab and Yellow Cab
were entitled a public hearing. See § 65-2A5(C). In its briefing to this Court, the PRC
does not address the fact that both ABQ
Cab and Yellow Cab meet the statutory
definition of an interested person, entitling
their protest to a public hearing.
{13} Instead, to justify rejecting ABQ Cab
and Yellow Cab’s request for a public hearing, the PRC relies on a stated legislative
policy directive that it must streamline the
application process for certifications. See
NMSA 1978, § 65-2A-2 (2003, amended
2013) (stating the transportation policy
under the Motor Carrier Act). “It is the
policy of this state to foster the development, coordination and preservation of a
safe, sound and adequate motor carrier
system . . . by streamlining and promoting
uniformity of state regulation of motor
carriers.” Id. The Motor Carrier Act also
states, “[t]he commission shall streamline
and simplify to the extent possible the
process for approving applications.” Section 65-2A-5(B). To the extent that PRC
rules impose additional informational
preconditions to a protestant’s right to a
public hearing, the PRC seeks to justify
those conditions in the name of streamlining the application process and removing
unnecessary impediments to competition.
{14} Streamlining, however, is not a defense to statutory obligations. Even with
the goal in mind of simplifying application
procedures, the PRC must follow statutory law. It may not by regulation impose
requirements that are greater than, and
inconsistent with, those set forth by the
Legislature. See T-N-T Taxi, 2006-NMSC016, ¶ 8 (“Although our interpretation of
the Motor Carrier Act is influenced by
the legislative declaration that it sought to
streamline the regulation of motor carriers, we are not convinced that the Legislature wanted to streamline the regulation of
motor carriers by having the PRC review
all applications for permits as uncontested
matters.” (citation omitted))
{15} The PRC’s rules impose a greater
burden on “interested persons” who seek
to protest at a public hearing—including
those like ABQ Cab and Yellow Cab who
already serve customers in the same area—
than the burden already established by the
Motor Carrier Act. PRC Staff interprets
Section 65-2A-3(T), to authorize the PRC
to require threshold factual showings by
interested persons, based on 18.3.2.18(A)
NMAC (01/01/2005), before allowing
interested persons to intervene. Thus,
according to PRC Staff, a party seeking
status as an intervenor must, in addition to
meeting the statutory definition of an “interested person” under Section 65-2A-3(T),
“state the movant’s interest . . . specifically
allege that the applicant . . . does not meet
one or more of the criteria for issuance
of the operating authority or temporary
authority, and describe in sufficient detail
the facts known to the movant supporting
the allegation.” 18.3.2.18(A) NMAC.
{16} Further, the PRC argues that under
1.2.2.30(B) NMAC, a single commissioner had the authority to review ABQ
Cab and Yellow Cab’s motion to intervene
and deny the motion because it did not
meet the requirements of PRC’s rules.
See 18.3.2.18(A) NMAC (providing the
requirements necessary to contest an application). Consequently, the PRC reasons,
a single commissioner could deny a party
status as an intervenor, and thus, turn a
contested application into an uncontested
application, negating the mandatory public
hearing required by the Motor Carrier Act.
{17} The PRC’s reasoning overlooks
the requirement of Section 65-2A-5(C),
Advance Opinions
whereby a public hearing must be held
upon the filing of a protest; it does not
turn on the grant of a party’s status as an
intervenor. See § 65-2A-5(C). Further,
“‘protest’ means a document filed with the
commission by an interested person that
expresses an objection to a matter before
the commission”; it does not require that
the interested person also have intervenor
status. See § 65-2A-3(T), (JJ).
{18} Appearing to parse the words of the
statute, the PRC does not dispute ABQ Cab
and Yellow Cab’s “general statutory right to
file a protest,” which was the specific issue
we decided in T-N-T Taxi. See T-N-T Taxi,
2006-NMSC-016, ¶ 4. The PRC, however,
does distinguish between filing a protest
and actually being allowed to participate in
a public hearing, especially when the protestants “utterly failed to meet the [PRC’s]
rule requirements for intervention.” The
PRC’s argument misses the essential point.
Regardless of their motion to intervene,
ABQ Cab and Yellow Cab were statutorily
entitled to air their protest at a public hearing. See § 65-2A-5(C). No rule or regulation
could take that away. Ironically, even the
PRC’s own rules seem to recognize that
right. According to the rule regarding a
contested application for a certificate of
authority, “[t]he hearing examiner shall,
within (10) days of appointment, issue a
notice of hearing setting a hearing to be
held withing sixty (60) days from the date
of appointment.” 18.3.2.18(B) NMAC
(01/01/2005) (emphasis added).
{19} The PRC argues that T-N-T Taxi, is
inapposite to this case. The PRC states that
T-N-T Taxi “only goes to whether the Motor
Carrier Act, as then amended through the
inclusion of statutory language expressing
a preference for a streamlined application
process, precluded a motor carrier from filing a protest to a permit application.” (Emphasis added.) In distinguishing the cases,
the PRC relies specifically on paragraph
eleven of the T-N-T Taxi opinion, where
it determines that this Court “deemed it
‘important’ that the intervenors . . . filed
their motions to intervene ‘pursuant to the
instructions provided them by the PRC.’” TN-T Taxi, 2006-NMSC-016, ¶ 11. The PRC
also emphasizes that the “then-applicable
PRC rule, [required that] an intervention
of right was granted whenever the moving
party demonstrated a substantial interest in
the PRC action.”
{20} The PRC’s interpretation of T-N-T
Taxi overemphasizes whatever weight we
placed on the “instructions provided them
by the PRC.” In T-N-T Taxi, the core issue
was not whether the parties had followed
the instructions or the regulations in filing
their protest, or whether the rule required
a demonstrated substantial interest. To the
contrary, the holding in T-N-T Taxi was
based on the same statute, Section 65-2A5(C), that applies in this case. We held that
“[t]he Motor Carrier Act requires the PRC
to consider whether the operations of [the
intervenor] motor carriers will be endangered or impaired to an extent contrary to the
public interest. Intervenors therefore have a
substantial interest in the proceedings . . . ,”
because the “[i]ntervenors’ operations and
transportation services [were] in the same
geographic location covered in [the] permit
application.” T-N-T Taxi, 2006-NMSC-016, ¶
13. Thus, our emphasis was not on what the
rule required, but that the parties were going
to be operating in the same territory, and
under the Motor Carrier Act were entitled
to be heard. See id. ¶¶ 11-13.
{21} T-N-T Taxi’s reasoning applies to
this case. We reject any other reading of this
Court’s prior opinion. ABQ Cab and Yellow
Cab are operating in the same geographic
territory as that covered by Green Cab’s application. Although a certificate of authority
is at issue here, and not a permit, thereby
implicating NMSA 1978, Section 65-2A-8
(2003, amended 2013) not NMSA 1978,
Section 65-2A-10 (2005, amended 2013)
(the statue at issue in T-N-T Taxi), the right
to protest and be heard in a meaningful way
is the same; it is premised on the same line of
thought. While the Legislature has expressed
a desire to streamline the application process,
that goal should not be accomplished at the
expense of existing, certified motor carriers.
Compare § 65-2A-5(B), with § 65-2A-5(C);
see also § 65-2A-8(C) (“Before granting a
certificate to an interstate common motor
carrier of persons, the commission shall
consider the effect that issuance of the
certificate would have on existing motor
carriers . . . .”). Reading Section 65-2A-5(B)
together with Section 65-2A-5(C) evidences
a legislative intent to streamline by allowing
permissive hearings upon a protest by
someone other than an interested person,
but providing a mandatory hearing upon
the protest of an interested person—in this
case ABQ Cab and Yellow Cab. Id.; see also §
65-2A-2(T) (an interested person is defined
by the overlap of geographic territory).
{22} Our understanding of the Legislature’s
intent is reinforced by recent legislative
amendments to the Motor Carrier Act that
speak directly to the facts in this case. Specifically, in 2013 the Legislature rewrote the
Act to say, “[t]he commission shall hold a
hearing on an application whenever a protest
is filed within the notice period . . . [and] . . .
shall allow a protesting carrier to proceed as
an intervenor in the application proceeding.”
Section 65-2A-13(B). While a new law does
not define the rights and obligations codified under a prior law, in this case it appears
that the new law simply clarifies what the
Legislature intended all along.
{23} We conclude that under the Motor
Carrier Act at the time ABQ Cab and
Yellow Cab filed their protests, motor
carriers operating over the same routes or
territories involved in a new application
for a certificate of authority may protest
an application and participate in a public
hearing. Upon the filing of that protest, the
PRC was required to hold a public hearing
and consider the “effect that the issuance
of the certificate would have on existing
motor carriers,” before it decided to grant
or deny the certificate. See § 65-2A-8(C).
{24} Because we conclude that the PRC
acted outside its grant of statutory authority in proceeding as if this were an
uncontested matter, not requiring a public
hearing, we reverse and remand so that a
proper public hearing may be conducted.
Accordingly, we do not need to reach
the issue of whether the PRC properly
approved Green Cab’s application for certificate and temporary authority; that will
be decided anew after a public hearing.
{25} Although these protestants are entitled to public hearing, we do not limit the
authority of the hearing examiner with respect to the conduct of that proceeding. A
hearing examiner, being vested with quasijudicial authority, has sound discretion in
how to manage that hearing, including
imposing reasonable demands upon the
parties with respect to offers of proof and
refinement of issues. We caution, however,
that such authority should not be reposed
in the PRC Staff, which participates in the
hearing more as an advocate for a particular position, one that at times may conflict
with certain parties.
CONCLUSION
{26} We reverse and remand to the PRC
for further proceedings consistent with
this opinion.
{27} IT IS SO ORDERED.
RICHARD C. BOSSON,
Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice
39
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music to tell the myth of Orpheus.
March 22, 2014 • 8 p.m.
State Bar of New Mexico Auditorium
5121 Masthead NE, Albuquerque
Tickets are $15 and can be reserved by contacting
Aaron Fields at [email protected] or 619-302-2662.
All proceeds go to the State Bar Foundation and Musical Theatre Southwest.
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All advertising must be
submitted via e-mail by 4
p.m. Wednesday, two weeks
prior to publication (Bulletin
publishes every Wednesday).
Advertising will be accepted
for publication in the Bar
Bulletin in accordance with
standards and ad rates set by
the publisher and subject to
the availability of space. No
guarantees can be given as to
advertising publication dates
or placement although every
effort will be made to comply
with publication request. The
publisher reserves the right
to review and edit ads, to
request that an ad be revised
prior to publication or to reject
any ad. Cancellations must
be received by 10 a.m. on
Thursday, 13 days prior to
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For more advertising
information, contact:
Marcia C. Ulibarri
at 505-797-6058 or
e-mail [email protected]
Classified
Positions
City Attorney
The City of Rio Rancho seeks to fill the position of City Attorney. The City Attorney is a
City Charter position in a Council – Manager
form of government. The City Attorney provides legal counsel to the Governing Body,
the City Manager, and all City departments,
boards and commissions, as well as represents
the City in all legal proceedings. The position supervises a Deputy City Attorney, two
Assistant City Attorneys, and two legal technicians. The position requires a significant
ability to deal with complex, controversial
issues of law and policy in representing the
state’s third largest city. Experience in a wide
range of municipal law, land use law, labor and
personnel law, contracts and public finance
is critical. The position requires a Juris Doctor from an accredited university, a license
to practice in New Mexico, seven years of
relevant experience, and a minimum of three
years of relevant supervisory experience. The
City Attorney is selected by the City Manager
and approved by the City’s Governing Body.
Salary is dependent upon qualifications,
with a general range of $104,000 to $130,000
per year. The City also provides an excellent benefit package. To apply: Please email
a cover letter, resume and salary history
to [email protected].
com. The job posting may be viewed at
ci.rio-rancho.nm.us/Employment/Career
Center and will close on 3/17/14.
Lawyer-A Position
The Depar tment of Hea lt h, Of f ice of
General Counsel seeks to fill a Lawyer-A
(DOH#10689) position in Santa Fe. The position requires a Juris Doctorate Degree and
five (5) years of experience in the practice of
law. The purpose of this position is to perform an advanced level of professional legal
services for the Department of Health in the
area of employment law. Position will provide
services in litigation, rendering legal opinions, drafting legal documents, interpreting
law, legal research and analysis, negotiation
and administrative hearings. Applicants
must be licensed to practice in New Mexico,
be in good standing and have no history
of professional disciplinary actions. Salary
ranges from $20.93/hr to $37.20/hr. THIS
POSTING WILL BE USED TO CONDUCT
ONGOING RECRUITMENT AND WILL
REMAIN OPEN UNTIL ALL POSITIONS
HAVE BEEN FILLED. To apply: Access the
website for the NM State Personnel Office;
www.spo.state.nm.us. Click on Apply for
a state Government Job. The State of New
Mexico is an Equal Opportunity Employer
Senior Trial Attorney
The 13th Judicial District Attorney’s Office is
accepting resumes for an experienced Attorney to fill the position of Senior Trial Attorney
in the Cibola (Grants), Sandoval (Bernalillo)
or Valencia (Belen) County Offices. This
position requires substantial knowledge and
experience in criminal prosecution, rules of
criminal procedure and rules of evidence, as
well as the ability to handle a full-time complex felony caseload. Admission to the New
Mexico State Bar and a minimum of five years
as a practicing attorney are also required.
Salary commensurate with experience. Send
resumes to Kathleen Colley, District Office
Manager, P.O. Box 1750, Bernalillo, NM 87004
or via E-mail to [email protected]
Deadline for submission: Open until filled.
Proposals to Provide Legal Services
The Risk Management Division of the
General Services Department for the State
of New Mexico is requesting proposals to
provide legal services. The purpose of the
Request for Proposal (RFP) is to solicit sealed
proposals to establish a contract through
competitive negotiations for the procurement
of professional legal services to the State of
New Mexico through the General Services
Department/Risk Management Division
to meet its broad range of legal needs.
Attorneys and law firms should submit
proposals for one or more of the following
areas of law in which they have expertise
including: general tort liability; medical
malpractice; law enforcement and corrections
liability; employment law; civil rights;
insurance, subrogation and contractual
indemnity; construction; property rights
and usage; and workers’ compensation.
For additional information please visit:
http://www.generalservices.state.nm.us/
riskmanagement/Solicitations.aspx
Associate Attorney
Law Offices of Lynda Latta, LLC seeks associate attorney for fast paced family law
and criminal misdemeanor defense. Spanish
speaking. Good computer and communication skills. Able to multitask and has great
attention to detail. Send resume and writing
sample via fax: 242-3125, mail: 715 Tijeras Ave.
NW, 87102 or email: [email protected]
Senior Staff Attorney
The Hartford has an opening for a Senior Staff
Attorney in Albuquerque, NM. Minimum
5+ years law practice, preferably within the
insurance defense industry dealing with tort/
general liability and workers’ compensation
matters. Please submit resume to lorraine.
[email protected].
Entry Level Associate Attorney
The Deschamps Law Firm, LLC, in Socorro,
NM has an opening for an entry level associate
attorney. Must relocate to Socorro area. Please
submit resume to shiloh@deschampslawfirm.
com or to P.O. Drawer 389, Socorro, NM 87801.
Criminal Defense Attorney
Turner Law Office is currently seeking a
Criminal Defense Attorney in Southwest
New Mexico. If interested, please contact
Stephanie Verdugo to set up interviews at
575-544-4306.
Are You Tired of Living by the
Billable Hour? Would You Like to
Get Into Court?
The New Mexico Human Services Department (HSD), Child Support Enforcement Division (CSED) seeks to fill attorney positions
throughout the State. You can join a team of
professionals, help your fellow citizens, and
practice law without the complication of filling out timesheets. With CSED, you represent
HSD to establish paternity, prepare and negotiate appropriate support orders and enforce
child support obligations. These positions
involve review, preparation and trial of cases
in child support hearings in district court and
administrative courts and/or the direction
of staff in preparation of legal documents.
These positions will provide advice on policies and programs in furtherance of strategic
goals. CSED positions currently available
are: Attorney – A (Advanced) in Roswell,
New Mexico; Attorney – A (Advanced) in
Alamogordo, New Mexico; Attorney – O
(Operational) in Farmington, New Mexico;
Attorney – O (Operational) in Santa Fe, New
Mexico; Attorney – O (Operational) in Rio
Rancho, New Mexico; Attorney – O (Operational) in Las Vegas, New Mexico; Attorney
– O (Operational) in Clovis, New Mexico;
Attorney – O (Operational) in Roswell, New
Mexico. All attorney positions with HSD
require a Juris Doctorate, admission to the
New Mexico Bar, and the appropriate legal
experience. Salary ranges for an Attorney
– A (Advanced) are $20.93 to $37.20/hr and
Attorney – O (Operational) are $18.54 to
$32.96/hr. To apply: access the website: www.
spo.state.nm.us and click on Apply for a State
Government job. The State of New Mexico
is an Equal Opportunity Employer. WHY
WORK FOR CSED? You make a difference
in people’s lives!
Associate Attorney
Lightning Legal Group is expanding and in
need of an attorney with experience serving
the people of New Mexico with family law
issues. Please fax resume and salary history
to 866.319.3058. All inquiries maintained as
strictly confidential.
43
Assistant District Attorney
The Fifth Judicial District Attorney’s office has an immediate position open to a
new or experienced attorney. Salary will be
based upon the District Attorney Personnel and Compensation Plan with starting
salary range of an Associate Trial Attorney
to a Senior Trial Attorney ($41,685.00 to
$72,575.00). Please send resume to Janetta
B. Hicks, District Attorney, 400 N. Virginia
Ave., Suite G-2, Roswell, NM 88201-6222 or
e-mail to [email protected].
District Public Defenders: 2nd, 5th,
9th and 12th Judicial Districts
The Law Offices of the New Mexico Public
Defender is recruiting applicants for the
positions of District Public Defenders for
the Alamogordo, Albuquerque, Clovis,
and Carlsbad. These are exempt positions
within a state agency which is overseen by
an independent commission and reports
directly to the Chief Public Defender. The
District Public Defender positions are high
senior level trial and management positions
within the agency and will be responsible for
all department operations in their assigned
judicial districts. Qualified applicants must
be licensed to practice law in New Mexico or
admitted to the New Mexico State Bar Association within one year of appointment, have
a minimum of eight years criminal litigation
or appellate experience at the misdemeanor
and felony level. Additionally applicants must
have a minimum of three years of experience
managing a law office to include attorney
and non-attorney staff. Salary range is from
$64,877 to $ 91,247 annually and will depend
on location and experience. Please direct
questions to Barbara Auten, HR Director, at
(505) 500-6486. Application deadline is 12:00
p.m. March 7, 2014. Please fax resume, letter
of interest, five professional references with
contact information and a writing sample to
(505) 476-0357, or e-mail at Barbara.Auten@
state.nm.us. The State of New Mexico is an
equal opportunity employer.
Assistant Trial Attorney/
Senior Trial Attorney Taos County
The Eighth Judicial District Attorney’s Office
is accepting applications for an Assistant
Trial Attorney or Senior Trial Attorney in the
Taos Office. The position will be responsible
for a felony caseload and have at least two
(2) to four (4) years as a practicing attorney
in criminal law. This is a mid-level to an
advanced level position. Salary will be based
upon experience and the District Attorney
Personnel and Compensation Plan. Please
send interest letter/resume to Daniel L.
Romero, Chief Deputy District Attorney, 105
Albright Street, Suite L, Taos, New Mexico
87571 or [email protected].
44
Deputy Chief Public Defender
The Law Offices of the New Mexico Public
Defender is recruiting applicants for the
position of Deputy Chief Public Defender.
This is an exempt position within a state
agency which is overseen by an independent
commission and reports directly to the Chief
Public Defender. The Deputy Chief Public
Defender is an executive management position within the agency and is responsible for
agency operations throughout the state which
will require periodic overnight travel. Qualified applicants must be licensed to practice
law in New Mexico or admitted to the New
Mexico State Bar Association within one year
of appointment, have a minimum of ten years
criminal litigation or appellate experience
at the misdemeanor and felony level. Additionally applicants must have a minimum
of three years of experience managing a law
office to include supervising attorney and
non-attorney staff which includes experience
managing statewide or regional programs.
Salary range is from $78,390.00 to $95,810.00
depending on experience. Please direct questions to Barbara Auten, HR Director, at (505)
500-6486. Application deadline is 12:00 p.m.
March 7, 2014. Please fax resume, letter of
interest, five professional references with
contact information and a writing sample to
(505) 476-0357, or e-mail at Barbara.Auten@
state.nm.us. The State of New Mexico is an
equal opportunity employer.
Associate Attorney
Scott & Kienzle, P.A. seeks associate attorney
with 0 to 5 years of experience. Practice areas
include foreclosure, litigation, collections,
bankruptcy, insurance, and Indian law. Responsibilities include opening a file through
pretrial, arbitration, trial, and appeal. Please
email a letter of interest, salary requirements, and résumé to Paul Kienzle at paul@
kienzlelaw.com
Lawyer Position
Guebert Bruckner P.C. seeks an attorney with
up to five years experience and the desire to
work in tort and insurance litigation. If interested, please send resume and recent writing
sample to: Hiring Partner, Guebert Bruckner
P.C., P.O. Box 93880, Albuquerque, NM
87199-3880. All replies are kept confidential.
No telephone calls please.
Associate Attorney
West Law Firm in Albuquerque is seeking an
associate with 1 to 5 years experience practicing civil litigation. Construction insurance
defense experience preferable. All inquiries
will be kept confidential. Please send resume
to [email protected]
Two Full Time Positions
WILLIAM F. DAVIS & ASSOC., P.C. a law
firm located in North East Albuquerque,
is accepting applications for two full time
positions. Our practice consists primarily
of Chapter 7, 11 & 13 bankruptcy proceedings and general business and commercial
litigation. Our firm offers competitive salary,
excellent benefits and a positive work environment. Positions are available immediately.
ASSOCIATE ATTORNEY – with 3 to 5 years
experience in bankruptcy, commercial law,
and litigation. Candidates should have a
strong academic background, and excellent
writing and research skills and be licensed
in New Mexico. Salary is commensurate
with experience. ATTORNEY – with 0 to
2 years experience with motivation to learn
and grow in a dynamic law firm concentrating in the area of bankruptcy. Candidate
should be willing to work hard and learn the
bankruptcy practice. Law school courses/
experience in Bankruptcy, Secured Transactions and UCC preferred. Candidate must be
licensed in New Mexico. Please send resume
via email to: [email protected] and
state the position you are applying for in the
subject text.
Governor Exempt
General Counsel Position
The NM Human Services Department seeks
to fill the Governor Exempt General Counsel
position in Santa Fe. This position is responsible for assisting the HSD in administering
its programs within the parameters of federal
and state laws and regulations. The incumbent will provide interpretation of those laws
and regulations and represent the HSD in
state and federal court and before administrative tribunals. The General Counsel position
provides program and policy managementdevelopment, implementation and evaluation
for the Office of General Counsel, advises the
Secretary and Division Directors on legal issues, litigates lawsuits, reviews proposed contracts, regulations, policies and Joint Power
Agreements and supervises attorneys and
support staff. The incumbent will review and/
or draft legislation and lobby for approval
with Legislature, prepare legal documents
and represent the Department and the OGC
at meetings with external stakeholders such
as attorneys, public officials, legislative bodies and other agencies. The position requires
a Juris Doctor and a minimum of six (6)
years legal experience. Salary ranges from
$27.03 to $66.91/hr. Please submit resume,
bar card and cover letter to NM HSD, Office of the Secretary, Attn: HSD Secretary
Sidonie Squier, PO Box 2348, Santa Fe, NM
87504. The State of New Mexico is an Equal
Opportunity Employer
Associate Attorney Position
Riley, Shane & Keller, P.A., an Albuquerque
AV-rated defense firm, seeks an Associate
to help handle our increasing case load. We
are seeking a person with one to five years
experience. Candidate should have a strong
academic background as well as skill and
interest in research, writing and discovery
support. Competitive salary and benefits.
Please fax or e-mail resumes and references
to our office at 3880 Osuna Rd., NE, Albuquerque, NM 87109 c/o Office Manager (fax)
505-883-4362 or [email protected]
Attorneys
Attorneys needed for 2 openings. 1 requires
litigation exp. for trials, court hearings, mediations, discovery...2nd attorney, 0-5 yrs exp.
Must be able to multi-task in a high volume,
fast paced reputable, growing law firm rep.
numerous nationwide banking clients. Nice
office in the Journal Center area. Good benefits (hol, vac, sick, health, dent, retir. & more).
Submit in conf. cover letter, resume, sal hist
& req to [email protected]
13th Judicial District Attorney
Associate Trial Attorney for
Valencia County
The 13th Judicial District Attorney’s Office is
accepting resumes for an entry level Associate
Trial Attorney for the Valencia County (Belen)
office. The position requires misdemeanor,
juvenile and possible felony cases. Upon request, be prepared to provide a summary of
cases tried. Salary is based upon experience.
Send resumes to Kathleen Colley, District
Office Manager, PO Box 1750, Bernalillo, NM
87004 or via E-Mail to: [email protected].
nm.us Deadline for submission of resumes:
until position is filled.
Assistant U.S. Attorney Positions
The U.S. Attorney’s Office for the District of
New Mexico is recruiting for Assistant U.S.
Attorney (AUSA) positions. The AUSA will
serve in either the Civil or Criminal Division
in either Albuquerque or Las Cruces, NM.
Qualifications: Applicants must possess a J.D.
degree, be an active member, in good standing, of the bar (any jurisdiction), and have at
least one (1) year post-J.D. experience. Salary
Information: AUSA pay is administratively
determined based, in part, on the number
of years of professional attorney experience.
The range of pay for this position is $51,403
to $136,049 including locality pay. These
positions are being announced under two different announcements. The complete vacancy
announcement may be viewed at: http://www.
justice.gov/careers/legal/, under Employment
Opportunities, announcement numbers
14-AUSA-NM-1 (Civil) and 14-AUSA-NM-2
(Criminal).
Legal Secretary/Assistant
Do you have 3 or more years experience as a
legal secretary? Are you familiar with civil
litigation, court rules and filing procedures?
Are your clerical, organization, computer and
word processing skills exceptional? Then send
your resume to this well respected, highly productive law firm at [email protected]
The Baker Law Firm
Legal Secretary
Small busy civil litigation law firm needs
experienced legal secretary. Experience
includes electronic filing in federal and
state courts, drafting legal documents and
discovery, scheduling, ordering records,
etc. Proficient in Microsoft Office, including
Word, Outlook, and Excel. Must be organized
and a team player. Please expect a “working”
interview (up to two hours) which will verify
qualified applicants’ skills. Please submit
resumes to [email protected]
Paralegal
Immigration law firm is currently seeking a
Spanish-speaking paralegal. We are looking
to hire someone who is interested in a career
in immigration law and is interested in working in a fast paced environment on complex
legal cases. The paralegal will prepare and
file immigrant visa petitions, applications for
adjustment of status, asylum, naturalization,
waivers and other administrative processes
before the Department of Homeland Security and Department of State. The position
will also assist in our removal cases before
the Immigration Courts. We are willing to
provide training in immigration law and
procedure. Bachelor's degree, prefer 1-3 years
of experience in a law firm, excellent organization and English writing skills, computer
literacy, and an interest in human rights and
immigration matters. Fluency in Spanish
(written and oral) is required. Competitive
salary and benefits. Applicants should e-mail
to [email protected] their resume, cover
letter, references and a writing sample.
Legal Assistant
Busy insurance and civil defense firm seeks
full-time legal assistant with minimum five
years experience in insurance defense and
civil litigation. Position requires a team player
with paralegal skills in addition to strong
word processing skills including proficiency
with Word Perfect, knowledge of court systems and superior clerical and organizational
skills. Minimum typing speed of 75 wpm.
Excellent work environment, salary and
benefits. Send resume and references to Riley,
Shane & Keller, P.A., Office Manager, 3880
Osuna Rd., NE, Albuquerque, NM 87109 or
e-mail to [email protected]
Paralegal and Legal Assistant
One Paralegal and one Legal Assistant needed
soon – to replace two assistants, both leaving
our office for law school! Must be bright,
consistent, detail-oriented and team players,
with excellent writing and organizational
skills. Full-time position, M-F 8 to 5. See our
Mission Statement at www.ParnallLaw.com.
Email cover letter, resume, references and
grade transcripts to [email protected].
Paralegal
Paralegal wanted for Plaintiff’s civil litigation firm. Growing law firm seeks a full time
experienced paralegal who is well organized,
detail oriented and has the ability to work
independently. Candidate must have prior
experience in civil litigation with an emphasis in personal injury. 5+ years experience
preferred. Salary will be commensurate
with experience. Please forward resumes to:
Hiring Partner, Bleus & Assoc. LLC, 2633
Dakota NE, Albuquerque, NM 87110 or email
to [email protected].
Paralegal
Stiff, Keith & Garcia, LLC, a successful insurance defense firm, seeks sharp energetic paralegal. Must be a self-starter, detail-oriented,
organized, and have excellent communication skills. A four-year degree or paralegal
degree, and insurance defense and/or personal injury experience required. Bilingual
in Spanish a plus. Please e-mail your resume
and list of references to [email protected].
Administrative Assistant
The Office of University Counsel is seeking
an organized, detail-oriented individual who
can work in a fast-paced, multi-task legal
environment. The person in this position
of Administrative Assistant - Legal, under
general supervision, will provide confidential administrative support to the Office
of University Counsel. Must have working
knowledge oflegal terminology and formats,
and experience in providing support on
medical malpractice litigation matters. The
minimum requirements are a high school
diploma or GED and at least 5 years of experience directly related to the duties and
responsibilities. TO APPLY: For complete information including closing dates, minimum
requirements, and instructions on how to apply for this or any UNM position please visit
our website at http://UNMJobs.unm.edu, or
call (505) 277-6947, or visit our HR Service
Center at 1700 Lomas Blvd NE, Suite 1400,
Albuquerque, NM 87131. EEO/AA
45
Full-Time Receptionist/
Legal Secretary
Small busy law firm seeking experienced,
full-time Receptionist/Legal Secretary,
knowledge of Microsoft Word necessary.
Salary negotiable. Send Resume to Margo
Danoff, Office Manager, 1225 Rio Grande
Blvd. NW, Albuquerque, NM 87104, Fax
to (505) 266-4330 or email to mdanoff@
qwestoffice.net.
Office Spaces for Lease
Two attractive office spaces for lease in the
downtown Abq historic Hudson House. Rent
includes telephone, equipment, access to fax,
copier, conference rooms, parking, library,
and reference materials. Referrals and cocounsel opportunities. For more information,
call the offices of Leonard DeLayo at 505-2433300, ask for Meg.
Full Service Office Available Now
Positions Wanted
Paralegal
Experienced mature paralegal seeks part-time
or contract work in Santa Fe. Please contact
Tish Gallarda at (505) 603-7442 or tishgllrda@
aol.com. Resume and excellent written references will be provided.
Services
Briefs, Research, Appeals—
Leave the writing to me. Experienced, effective, reasonable. [email protected]
(505) 281 6797
All inclusive offices now available by the hour,
day or month conveniently located in Albuquerque at I-25 & Paseo. Call Joy Davis at 7969600 for tour. www.officealternatives.com
www.facebook.com/officealternatives.com
Law Office for Rent
Special Offices for Lease Now
5th/Tijeras just 1/2-4 blocks to downtown
firms, Courts, City/County. Large, medium &
2 moderately sized offices, all well- furnished
for lawyers. From $300-1300. Ilene greets
your visitors & serves refreshments in spacious waiting area, & answers calls to your
phone #. On-site parking; 14 & 8 seat conf
rooms;high-speed copier, scanner, fax using
your client codes. Filtered water, refrigerator
& microwave. 7 firms enjoy referrals & collegiality. Ron Morgan @ 220-0480
Miscellaneous
Will Search
Law Office for rent in larger office with two
other attorneys. Office only for $375 per
month. Other items including internet,
telephone, fax, available (price negotiable)
if needed. No lease requirement. Front
door parking. Located at 8010 Menaul NE
(two blocks west of Wyoming). Call: Hal
Simmons, 299-8999
I am searching for a Last Will and Testament
of Kiet Truong. Anyone with knowledge of
such a document please contact the Law Office of Benjamin Hancock at 505-508-4343, or
via e-mail at [email protected].
ENews
Website Services
Do you need a website, better website, more
clients? Our internet marketing service is by
an attorney for attorneys. Complete website
packages starting at $350 a month. www.
legalmarketingguru.com Call today 1-855487-8101
stay connected...
E
MEET YOU AT TH
Office Space
Office Space Available
New Mexico non-profit organization has
extra office space at its new location. Two or
three single office spaces available. Separate
entrance and reception area with professional
presentation. Great downtown location with
ample parking. Price includes gas, water and
electricity. Tenant pays own phone and internet. Call Abby at (505) 255-2840 for more
information and pricing.
INBOX!
• Have you received your ENews yet?
• It’s placed in your inbox every Friday.
• Get the latest updates on CLE classes, member benefits,
and other law-related activities around New Mexico.
3 Large Offices Available To Rent!
BEST LOCATION IN TOWN, 1 Block or
less to all courthouses. Up to 4 large offices
available, secretary space,library, security,
receptionist, cleaning, parking, phone, etc.
included. Call Office Manager at 247-2972.
46
To subscribe to ENews free of charge, contact [email protected].
Vehicle Accidents
Has Your Client Made a Full Recovery?
Have you asked yourself: Is anything wrong with
the vehicle’s safety systems that may have caused
your client’s injury or death?
Did you check if the airbag deployed late or not at all?
Did you check the seatbelts for evidence of unlatching?
Did you evaluate roof crush?
Did you check to see if a door opened?
Did the seats deform?
Did the vehicle catch on fire?
Vehicle safety systems routinely fail during
accidents and expose people to the risks of
serious injuries and death. To ensure your clients’
have obtained a full recovery, a crashworthiness
evaluation of the vehicle must be conducted.
At the TRACY law firm, we constantly question
how the vehicle’s safety systems perform during
an accident.
Call Todd Tracy and discuss whether or not your client’s
safety systems failed to provide proper protection in the
accident.
The TRACY law firm is a nationwide law practice dedicated to the issue of identifying vehicle
safety systems that violate the principles of crashworthiness.
The
law firm
www.vehiclesafetyfirm.com
214‐324‐9000
5473 Blair Rd, Ste . 200, Dallas, Texas 75231
47
2014 Annual Meeting –
Bench and Bar Conference
Make it a Get-A-Way.
July 17-19, 2014
Hyatt Regency Tamaya Resort and Spa
1300 Tuyuna Trail, Santa Ana Pueblo, NM
888-421-1442
https://resweb.passkey.com/go/STNM2014
Early Room Registration
$159* - single/double
$219* - Jr. Suite
$50/$60 (single/double) - Regency Club
*
Add $10 resort fee to room rates (discounted from $20).
Cutoff date: June 25
For more information contact Kris Becker, 505-797-6038.

3 to 5 - State Bar

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